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The Concept of Genocide in

International Criminal Law

This book presents a review of historical and emerging legal issues that concern

the interpretation of the international crime of genocide.

The Polish legal expert Raphael Lemkin formulated the concept of genocide

during the Nazi occupation of Europe, and it was then incorporated into the

1948 Convention on the Prevention and Punishment of the Crime of Genocide.

This volume looks at the issues that are raised both by the existing international

law deﬁnition of genocide and by the possible developments that continue to

emerge under international criminal law. The authors consider how the concept

of genocide might be used in different contexts, and see whether the deﬁnition

in the 1948 convention may need some revision, also in the light of the original

ideas that were expressed by Lemkin. The book focuses on speciﬁc themes that

allow the reader to understand some of the problems related to the legal deﬁn-

ition of genocide, in the context of historical and recent developments.

As a valuable contribution to the debate on the signiﬁcance, meaning and

application of the crime of genocide the book will be essential reading for stu-

dents and academics working in the areas of Legal History, International Crim-

inal Law, Human Rights, and Genocide Studies.

Marco Odello, PhD (Madrid), LLM (Nottingham), LLB (Rome), is Reader in

Law at Aberystwyth University.

Piotr Łubiński, PhD, is Senior Lecturer at the Institute of Security and Civic

Education, Pedagogical University, Krakow, Poland.

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The Concept of Genocide in

International Criminal Law

Developments after Lemkin

Edited by Marco Odello and

Piotr Łubiński

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First published 2020

by Routledge

2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

and by Routledge

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Routledge is an imprint of the Taylor & Francis Group, an informa

business

individual chapters, the contributors

The right of Marco Odello and Piotr Łubiński to be identiﬁed as the

authors of the editorial material, and of the authors for their

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and 78 of the Copyright, Designs and Patents Act 1988.

reproduced or utilised in any form or by any electronic, mechanical,

or other means, now known or hereafter invented, including

photocopying and recording, or in any information storage or

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Trademark notice: Product or corporate names may be trademarks or

registered trademarks, and are used only for identiﬁcation and

explanation without intent to infringe.

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library

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A catalog record has been requested for this book

ISBN: 978-0-367-85819-3 (hbk)

ISBN: 978-1-003-01522-2 (ebk)

Typeset in Galliard

by Swales & Willis, Exeter, Devon, UK

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Dedicated to Ola, Zosia, Jurek and my mum –Piotr

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Contents

Editors and contributors ix

Introduction xiii

MARCO ODELLO AND PIOTR ŁUBIŃSKI, EDS

PART I

Theoretical and historical framework 1

1 Raphael Lemkin’s legacy in international law 3

AGNIESZKA BIEŃCZYK-MISSALA

2 The crime of genocide in Ukraine (1932–1933) 16

OLGA WASIUTA

3 Kingpins of contention: local-level dynamics of mobilization in the

Rwandan genocide 38

HANNA SCHIEVE

PART II

International and national legal dimensions 65

4 The crime of genocide in its (nearly) inﬁnite domestic variety 67

TAMÁS HOFFMANN

5 Responsibility of members of the government and other public

ofﬁcials pursuant to Article IV of the 1948 UN Convention on the

Prevention and Punishment of the Crime of Genocide 98

KAMIL BOCZEK

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6 Transnational corporations’liability for genocide under

international law 117

ŁUKASZ DAWID DĄBROWSKI

PART III

Challenges and new developments 139

7 Probing the boundaries of the Genocide Convention: children as a

protected group 141

RUTH AMIR

8 Interaction between genocide and superior responsibility:

conviction for a special-intent crime without proving special intent? 165

MICHALA CHADIMOVÁ

9‘Kill them all and let God sort them out’, or why religiously

motivated terrorism should not be confused with the crime of

genocide 191

MILENA INGELEVIČ-CITAK AND MARCIN MARCINKO

10 Blurring the distinction between ethnic cleansing and genocide 212

TAMAS VINCE ADANY

11 Genocide and culture: revisiting their relationship 70 years after the

Genocide Convention 236

MARCO ODELLO

12 Social media incitement to genocide: ECHR countries’perspective 262

PIOTR ŁUBIŃSKI

Index 282

viii Contents

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Editors and contributors

Marco Odello, PhD (Madrid), LLM (Nottingham), LLB (Rome), is Reader in

Law at Aberystwyth University. He teaches International Law, International

Humanitarian Law, Human Rights Law, and Comparative Public Law. He is

a member of the International Institute of Humanitarian Law. He has been

a guest lecturer at several institutions including the NATO School (Oberam-

mergau); the International and European Doctoral Seminar at the University

of Nice; the LLM in International Criminal Law, University of Turin and

UNICRI; and the Summer University on Human Rights in Geneva. His

publications include: ‘The United Nations Declaration on the Rights of Indi-

genous Peoples’in D. Short and C. Lennox (eds), Handbook of Indigenous

Peoples’Rights, 2016; (with F. Seatzu, eds) Latin American and Caribbean

International Institutional Law, 2015; (with F. Seatzu, eds) Armed Forces

and International Jurisdictions, 2013; (with F. Seatzu) The UN Committee

on Economic, Social and Cultural Rights, 2012; (with S. Cavandoli, eds)

Emerging Human Rights in the XXI Century, 2011; (with R. Piotrowicz,

eds) International Military Missions and International Law, 2011.

Piotr Łubiński, PhD (Aberystwyth 2016, Krakow 2012), is a lawyer and senior

lecturer (Institute of Security and Civic Education, Pedagogical University)

in Humanitarian Law, International Criminal Law, Human Rights, and Inter-

national Public Law. He attended programs and courses run by international

institutions, such as workshops on rules of engagement conducted by the

International Institute of Humanitarian Law Sanremo (Italy), the Seminar in

the Centre for Studies and Research in International Law and International

Relations (The Hague Academy of International Law, Netherlands) and the

Warsaw Summer School on Humanitarian Law in Poland. He was also legal

adviser to the Polish military forces in Afghanistan in 2008. His publications

include: ‘Human rights and humanitarian law in EU military operations’in

European Union with Brexit Ahead (ed. J. Barcik; in Polish), 2018; (editor)

International Humanitarian Law of Armed Conﬂicts: Selected Issues, 2017;

and four chapters in The International Humanitarian Law of Armed Conﬂict

Manual (eds Z. Falkowski and M. Marcinko; in Polish), 2014.

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Ruth Amir is Senior Lecturer at the Department of Political Science at Yezreel

Valley College. Her research and publications focus on transitional justice,

genocidal forcible child transfers, and forced migration. Among her recent

books are: Twentieth Century Forcible Child Transfers: Probing the Boundaries

of the Genocide Convention,Who Is Afraid of Historical Redress: The Israeli

Victim-Perpetrator Dichotomy,The Politics of Victimhood: Historical Redress

in Israel? (in Hebrew), and the co-edited volume Critical Insights: Anne

Frank, the Diary of a Young Girl. Her two recent articles (2018) are ‘Canada

and the Genocide Question: It Did Happen Here’and ‘Law Meets Litera-

ture: Raphael Lemkin and Genocide Studies’.

Tamas Vince Adany is Associate Professor of International Law and the Head

of Department for International Law at the Pazmany Peter Catholic Univer-

sity in Budapest. He graduated as a lawyer (Doctor iuris) in 2000, and he

holds a PhD in International Law and a master’s degree in International

Relations. He was a research assistant for the Hungarian Government in the

Gabcikovo–Nagymaros Case. He has advised a number of legal practitioners

and has also assisted Hungarian government experts as well as several non-

governmental organisations. During the nearly two decades of his academic

career he has been teaching courses on various aspects of international law in

several universities in Hungary, Poland, the Netherlands, Lithuania, and the

United States. He is a member of the International and European Law Sub-

commission of the Hungarian Academy of Sciences and the Hungarian

Branch of the International Law Association.

Agnieszka Bieńczyk-Missala is Dr hab. Assistant Professor at the Institute of

International Relations, University of Warsaw. She is also Vice-Director for

Academic Research and International Cooperation at the Institute of Inter-

national Relations, University of Warsaw (since 2008), and has been an ana-

lyst at the Polish Institute of International Affairs (2006–2008), an expert at

the European TUNING Programme (2009–2010), and a participant in the

Network on Humanitarian Action (since 2006).

Kamil Boczek is a PhD student of the Faculty of Law in the Warsaw University.

He specialises in international law, especially on the issues related to crimes

against humanity, genocide, and human rights.

Michala Chadimová, JUDr., LLM, is Legal Advisor at La Strada Czech Repub-

lic, and a PhD candidate at Palacky University Olomouc with research on

international criminal responsibility for special intent crimes. An LLM gradu-

ate at the Amsterdam University in International Public and European Law,

she has legal experience in national and international prosecution. She spent

six months at the International Criminal Court and participated in the pros-

ecution of Bosco Ntaganda for war crimes and crimes against humanity. She

also served at the Ofﬁce of the Co-Prosecutor at the Extraordinary Chambers

in the Courts of Cambodia. She is a member of the International Association

of Genocide Scholars.

xEditors and contributors

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Łukasz Dawid Dąbrowski, PhD (Law), is an attorney-at law and a lecturer in

the Warsaw School of Economics and previously at the Faculty of Law,

Department of Human Rights Protection and International Humanitarian

Law, at University Cardinal Stefan Wyszyński in Warsaw. He provides legal

services to telecommunications companies and represents legal entities in

administrative and civil procedures in all types of courts. He is the author of

publications in the ﬁeld of international criminal law, international protection

of human rights law, and telecommunications law.

Tamás Hoffmann holds a PhD in Law from the International Law Department,

Eötvös Loránd University of Sciences, Budapest. He obtained a Diploma in

International Humanitarian Law from the International Committee of the Red

Cross, Geneva, in 2005 and an LLM in Public International Law (University of

London, King’s College). He is an associate professor at the Corvinus University

of Budapest and a senior research fellow at the Institute for Legal Studies of the

Centre for Social Studies of the Hungarian Academy of Sciences, and has served

as an intern in the Ofﬁce of the Prosecutor, Appeals Section, of the International

Criminal Tribunal for the Former Yugoslavia, The Hague. He is the author of

several publications in Hungarian and English.

Milena Ingelevic-Citak, PhD, is Junior Teaching and Research Assistant for

the Chair of Public International Law at Jagiellonian University, and

a member of the International Law Association –Polish Group and the Asso-

ciation of Polish Academics in Lithuania. Her research interests lie in the area

of public international law, with a particular focus on state-building pro-

cesses, international recognition of states and the issue of non-recognised

entities, human rights, the Russian doctrine of international law, and terror-

ism in cyberspace. She is the author or co-author of 13 scientiﬁc articles, co-

author of one monograph, and co-editor of two publications.

Marcin Marcinko, PhD, is Senior Teaching and Research Assistant for the

Chair of Public International Law at Jagiellonian University in Krakow;

Coordinator of the International Humanitarian Law and Human Rights

Centre, Faculty of Law and Administration, Jagiellonian University; and

Chairman of the National Commission on Dissemination of International

Humanitarian Law, Polish Red Cross Main Board.

Hanna Schieve is Projects and Policy Manager at the Natural History Museum

(London), focused particularly on due diligence, ethics, and data protection.

She is an alumna, with an MSc in Conﬂict Studies, of the London School of

Economics and Political Science, where she specialised in political violence in

Sub-Saharan Africa. She has wide-ranging experience working in policy and

politics across the US and the UK, including as an intern at the House of

Commons, the United States Senate, and the Paciﬁc Council on Inter-

national Policy in Los Angeles. She is a proud Badger alumna with a BA with

Honors in Letters and Science and a double major in Political Science and

French from the University of Wisconsin-Madison.

Editors and contributors xi

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Olga Wasiuta is Director of the Institute of the Security Studies at the Peda-

gogical University KEN in Krakow. Currently her scientiﬁc interests focus on

the problems of regional security, information security, and hybrid war led by

Russia, and its impact on the perception of security by European countries.

She conducts research on political and social challenges in Russia and

Ukraine, showing the interdependence and contradiction of interests between

Russia and the former USSR republics. She is the author of more than 170

papers, including monographs, edited books, and textbooks.

xii Editors and contributors

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Introduction

The idea to celebrate the 70th anniversary of the Genocide Convention seemed

to be not only appropriate but also necessary for international lawyers from this

part of the Europe. Krakow is located in proximity to Auschwitz –the tragic

reminder and cause of Lemkin’s concerns and legal endeavours. In addition,

Jagiellonian University is located in Krakow, which is where his colleagues, pro-

fessors, and even opponents were often educated. However, this book is also

a tribute and contribution from many other persons and scholars. Ten years

ago, Warsaw University organised a conference commemorating the 60th anni-

versary of the convention. We are extremely proud to continue the research that

for many Polish lawyers is often intermingled with personal experiences. This

book is the result of a conference marking the 70th anniversary of the Genocide

Convention, which was organised in Krakow jointly by the Pedagogical Univer-

sity and Jagiellonian University.

The contributors to this book have been asked to address and discuss, when-

ever possible, the legacy and ideas that were introduced by Raphael Lemkin in

relation to the concept of genocide. Born in Poland, Lemkin formulated the

concept of genocide during the Nazi occupation of different countries in

Europe before and during the Second World War. Following the end of the

war, and while the atrocities committed against millions of civilians were coming

to light, the United Nations committed itself to adopting a legal document that

would deﬁne certain types of crimes that could be prevented and punished

under international law. The 1948 Convention on the Prevention and Punish-

ment of the Crime of Genocide was the result of Lemkin’s dedicated personal

and intellectual efforts to provide a legal deﬁnition of the crime that he had

already identiﬁed as an international crime in his writings. In many ways, it was

the result of an almost one-person lobbying machine, including meetings with

and letters sent to a variety of individuals, institutions, and politicians.

Lemkin’s original deﬁnition of genocide –a word that he invented –included

a variety of acts that would affect certain groups and that could lead to the

destruction or annihilation of those targeted groups. Today, 70 years after the

adoption of the Genocide Convention, there are still examples of massive viola-

tions of human rights that are directed against certain groups and sections of

the population with the possible intention of exterminating them. The concept,

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and the convention, are still living works and ideas. The nature of the media,

which can be used for the incitement to genocide, as well as the issue of cultural

genocide, are theoretical issues that are very much debated nowadays. On prac-

tical side, the scale of ISIS’s brutality again shocked the world in its genocide of

the Yazidi population.

This living document is also debated thanks to Philippe Sands’excellent book

East West Street,

which still raises questions whether Lemkin’s original formula-

tion and understanding of the concept of genocidal acts and intentions were,

possibly, the right ones. In the past 70 years there has been an increasing inter-

national focus on crimes that might ﬁt within the Genocide Convention’sdeﬁn-

ition –in particular as a consequence of the developments in international

human rights and international criminal law and the decisions of international

courts. The present book looks at the issues that are raised by both the existing

international law deﬁnition of genocide and the possible developments that are

emerging under international criminal law. It provides an updated review of

both the historical and emerging legal issues that concern the interpretation of

the international crime of genocide.

The contributions to this book are organised into three sections. The ﬁrst

part covers the theoretical and historical framework. Agnieszka Bieńczyk-Missala

deals with RafałLemkin’s concept of genocide vs that encompassed in the

Genocide Convention. She goes back to Lemkin’s early Madrid paper and the

evolution of the concept of ‘genocide’. Lemkin’s understanding and knowledge

about the Soviet policy in Ukraine during the Great Holodomor (great famine)

also had a great inﬂuence on his writing, and he openly called the Holodomor

genocide. Professor Olga Wasiuta examines and describes this Ukrainian experi-

ence of genocide in 1932–1933, while Hanna Schieve provides a revised consid-

eration of the Rwandan genocide and its actors to complete this ﬁrst section of

the book.

The second part of the book addresses the international and national legal

dimensions. The prohibition of genocide has a signiﬁcant inﬂuence on the

domestic legal orders, as it is important to include a deﬁnition of the crime in

national criminal law that would provide the necessary characterisation and pro-

cedures to make it possible to prosecute individuals who are considered respon-

sible for such a crime. Tamás Hoffmann looks at the crime of genocide in its

(nearly) inﬁnite domestic varieties to show how the international deﬁnition may

be integrated into states’national and international practice. In connection with

this aspect of national prosecution, Kamil Boczek considers in detail the respon-

sibility of members of the government and other public ofﬁcials in relation to

the application of Article 4 of the Genocide Convention. This section of the

book concludes with a chapter written by Łukasz Dawid Dąbrowski on the

liability of transnational corporations for genocide, with speciﬁc attention paid

1 P. Sands, East West Street: On the Origins of Genocide and Crimes against Humanity (Weiden-

feld & Nicholson, London, 2017).

xiv Introduction

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to contemporary international law. The increasing role of corporations and their

complicity in many very serious violations of international law and human rights

raises important questions about their potential responsibility, including in the

context of the crime of genocide.

The third and ﬁnal section of the book provides a discussion on topics and

issues that show how the law on genocide remains a subject of both continuing

interpretation and evolution, making the Genocide Convention a living instru-

ment that could and should adapt to the evolving situations and events that

threaten the survival of different groups of people. Ruth Amir argues in her

chapter –entitled ‘Probing the boundaries of the Genocide Convention: chil-

dren as a protected group’–for an increased protection of children, especially

in the context of forcible recruitment of child soldiers and forcible child transfers

by non-state actors perpetrating genocide and mass atrocities. Michala Chadi-

mová considers the interaction between genocide and the doctrine of superior

responsibility. This is done by looking at the requirement of the ‘special intent’

for the crime of genocide and thus dealing with the very core of the Genocide

Convention, while addressing the unique relationship between superior respon-

sibility and the required special intent to commit the crime of genocide, which

deserves a more complex analysis. Milena Ingelevič-Citak and Marcin Marcinko

address the topic of the misinterpretation of religiously motivated terrorism in

relation to the crime of genocide. They clarify that religiously motivated terror-

ism, although concerning a speciﬁc religious group, is guided by completely dif-

ferent assumptions based on the objective that terrorist groups intend to

achieve.

Despite the International Criminal Tribunal for the Former Yugoslavia’s deci-

sions on the topic, ‘ethnic cleansing’still lacks a clear and universally accepted

legal deﬁnition. Tamas Vince Adany considers the possible interactions and dis-

tinctions between the crimes of ethnic cleansing and genocide, and argues that

ethnic cleansing can be tantamount to genocide in certain cases.

Marco Odello considers some elements of the never-ending debate on cul-

tural genocide. His chapter takes into consideration the evolution of the protec-

tion of culture, cultural heritage, and cultural goods, both material and

immaterial, under the broader context of international law and international

criminal law. He addresses the issue of whether there is a need for new forms of

revised protection of different types of cultural expressions within the context of

international criminal law, particularly in relation to genocide. This third section

ends with Piotr Łubiński’s chapter discussing the role of social media in the

incitement to genocide, with a particular focus on the situation within countries

that are parties to the European Convention on Human Rights. He analyses the

extent to which the new media may serve as a platform for direct and public

incitement to genocide.

In conclusion, the broad scope of this book should contribute to a revised

consideration of a number of issues that raise concerns in relation to the crime

of genocide, and that to some extent have been excluded, forgotten, or maybe

even set aside on purpose, by those viewpoints that take a narrow interpretation

Introduction xv

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of the crime of genocide. It seems that narrow interpretations are sometimes

supported by states whose actions and policies have shown little sympathy for

the victims of genocide, and sometimes might become forms of collusion with

regimes that led to genocidal actions and that are based on different political,

economic, and ideological motivations.

Every year, many states commemorate the millions of victims of the Nazis’

genocidal policies with events that often take the name of Holocaust Remem-

brance Day. It is very important that these events take place to avoid the obliv-

ion of the past and remember that these crimes may occur even within the most

reﬁned societies. However, it would be also important that those same states

take adequate actions when these types of crimes manifest themselves and, even

more importantly, work more closely together to prevent the manifestation of

genocide wherever it may occur.

We hope that this collective work will contribute to the debate on the deﬁn-

ition and the meaning of the crime of genocide

in light of the broader develop-

ments that occurred in international law since the adoption of the 1948

Genocide Convention.

The aim is not only to test, but also to provide, some ideas that might be

used in different legal and non-legal contexts and that could support an evolu-

tionary and updated interpretation of the ‘crime of crimes’more in line with the

ideas, aims, and purposes that were originally conceived by Lemkin more than

70 years ago.

Marco Odello and Piotr Łubiński

Aberystwyth and Krakow, January 2020

2 See, among others: S. Totten and H.C. Theriault, The United Nations Genocide Convention:

An Introduction (University of Toronto Press, 2020); J.S. Bachman, Cultural Genocide: Law,

Politics, and Global Manifestations (Routledge, 2019); L. Whitt, A.W. Clarke, North American

Genocides: Indigenous Nations, Settler Colonialism, and International Law (CUP, 2019);

S. Totten (ed), Teaching about Genocide (Rowman & Littleﬁeld, 2018); B. Lang, Genocide:

The Act as Idea (Pennsylvania Studies in Human Rights; University of Pennsylvania Press,

2017).

xvi Introduction

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Part I

Theoretical and historical

framework

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1 Raphael Lemkin’s legacy in

international law

Agnieszka Bieńczyk-Missala

It took many years to restore the memory of Raphael Lemkin, who coined the

term “genocide.”Currently he is a well-known ﬁgure, especially among lawyers

and historians, who appreciate his massive contribution to the concept of geno-

cide and to the Convention on the Prevention and Punishment of the Crime of

Genocide of 9 December 1948 which, taking into account his personal engage-

ment and the inﬂuence on the treaty, is often called Lemkin’s Convention.

Lemkin’s concept arose in a difﬁcult period for humanity, during which the

slaughter of Armenians, the Great Famine in Ukraine, mass exterminations in

the Soviet Union, the Holocaust, and mass crimes against the population of

Central and Eastern European countries occupied by Fascist Germany all took

place. However, there was no prohibition of mass killings in international law,

as well as no comprehensive rules to protect minorities and other vulnerable

groups. In addition, sovereignty was understood as the full power of the state

overitsterritoryandpopulation,whichresultedinthelackofreactiononthe

part of other governments to the suffering of the people.

The dominant

practice of non-interference in relations between a state and its civilians put

the international community in the role of a passive observer of the tragedies

experienced by individuals and entire groups as a result of government

actions.

Raphael Lemkin was one of those engaged lawyers who lived at a turning

point in history and inﬂuenced the development of international law. Before

World War II, only selective initiatives were implemented regarding the pro-

tection of human rights in international law. These were related to, among

other issues, the prohibition of slavery, the protection of religious and

national minorities, the rights of employees or the protection of persons

during armed conﬂicts. The drama of the mass crimes of World War II

ﬁnally revealed the need to take greater responsibility for the individual and

his/her dignity and to protect entire groups exposed to a violation of their

1 See: J. Bodin, Six Books on Commonwealth (Basil Blackwell 1955); E. Andrew, “Jean Bodin on

Sovereignty”(2011) 2(2) Republics of Letters: A Journal for the Study of Knowledge, Politics,

and the Arts.

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rights.

Raphael Lemkin was one of the ﬁrst to notice the threats arising

from the deﬁcit of legal protection for entire social groups exposed to perse-

cution and extermination. He made his ﬁrst legal proposals even before the

outbreak of war. However, it was the cruelty of mass crimes after 1939 that

brought about a change in international consciousness and enabled the

implementation of his ideas. The purpose of this chapter is to present Raph-

ael Lemkin’s heritage in international law.

Personal context

Raphael Lemkin was born on 24 June 1900, in a Jewish family in Bezwodne,

near Volkovysk.

These lands, known as the Eastern Borderlands, belonged to

Russia at the time of the partitions of the multinational Commonwealth at the

end of the eighteenth century. He was the son of Bella and Josef. His father

was a farmer, and his well-educated mother took care of her son’s upbringing

and education, exerting a great inﬂuence on him. He spent his childhood in an

extremely ethnically diverse part of the country, where for centuries Poles,

Ukrainians, Jews, Belarusians, Lithuanians, and Karaites lived side by side. He

witnessed various situations, both good and peaceful cooperation and serious

tensions between ethnic groups, including discrimination against Jews. He

graduated from middle school in Volkovysk, and then studied law at the Jan

Kazimierz University in Lviv –one of the most important academic centers in

the Second Polish Republic. He attended the courses of many outstanding

Polish lawyers there, including Juliusz Makarewicz, Ludwik Ehrlih, and Stanis-

ław Starzyński.

Lemkin obtained a doctoral degree in criminal law from the

University of Lviv in 1926.

Multiethnic and multicultural Lviv strongly inﬂuenced him and was intellec-

tually inspiring. Although Lemkin was interested in the suffering of minorities

already in childhood –he read about the situation of Christians in ancient

Rome in Henryk Sienkiewicz’sQuo Vadis –it was only during his student years

that he seriously analyzed the tragedy of mass crimes committed on religious

and ethnic communities. He was especially interested in the case of the massacre

2 D. Shelton, An Introduction to the History of International Human Rights Law (George Wash-

ington University Law School, Working Paper No. 346, August 2007) 1–13; R. Kuźniar,

Prawa człowieka, prawo, instytucje, stosunki międzynarodowe (Wydawnictwo Naukowe Scholar

2000) 29–33.

3 R. Szawłowski, “Raphael Lemkin’s Life Journey: From Creative Legal Scholar and Well-to-do

Lawyer in Warsaw until 1939 to Pinnacle of International Achievements during the 1940s in

the States, Ending Penniless Crusader in New York in the 1950s”in A. Bieńczyk-Missala and

S. Dębski (eds.), RafałLemkin: A Hero of Humankind (Polish Institute of International Affairs

2010) 31–57.

4 A. Redzik and I. Zeman, “Masters of RafałLemkin: Lwów School of Law”in A. Bieńczyk-

Missala (ed.), Civilians in Contemporary Armed Conﬂicts (Warsaw University Press 2017)

235–240.

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of the Armenians, which he discussed with his professors.

Lemkin’s interest in

mass crimes was particularly inﬂuenced by two events: the murder of Talaat

Pasha, who was responsible for the pogroms of the Armenians in Turkey; and

the assassination of Symon Petliura in retaliation for the pogroms against Jews

by the Ukrainian People’s Republic in 1919.

These events prompted him to

ask questions about international justice and the legal responsibility of units for

the crimes they committed.

He moved to Warsaw in 1926, where as a Doctor of Law he began his

career. Lemkin became the secretary of the Appellate Court in Warsaw, and

then worked as a prosecutor and a secretary in criminal law sections and sub-

commissions of the Polish Codiﬁcation Commission.

Lemkin also participated in the forensic seminar of Wacław Makowski at the

University of Warsaw. In 1933, Lemkin became an assistant professor at the

Law School of the Polish Open University in Warsaw, which was headed by

Professor Emil Rappaport. He closely observed the contemporary tendencies in

European criminal law, especially the legislation and new criminal law codiﬁca-

tions in Fascist Italy and Soviet Russia. He published several papers in this ﬁeld,

including a translation of the Soviet Penal Code.

He also published several

papers on the codiﬁcation of Polish penal law.

Lemkin was introduced to the International Bureau for the Uniﬁcation of

Penal Law in the 1930s. He became a permanent Polish delegate to numerous

conferences and international congresses in the ﬁeld of criminal law.

He pre-

pared a famous lecture at the 5th International Conference for the Uniﬁcation

of Criminal Law in Madrid, in which he proposed new crimes against the law of

nations –the crime of barbarity (exterminations by means of massacres, pog-

roms, or economic discrimination), and the crime of vandalism (the destruction

of cultural and artistic works). His idea did not gain national or international

support. At the beginning of 1934 Lemkin quit his service as a vice-prosecutor

and joined the Bar of the District Chambers of Advocates in Warsaw.

After the outbreak of World War II on 1 September 1939 Lemkin made the

decision, not understood by his immediate family, to escape from Poland. He

5 See: D.-L. Frieze (ed.), Totally Unofﬁcial: The Autobiography of Raphael Lemkin (Yale Univer-

sity Press 2013).

6 M. Kornat, “RafałLemkin’s Formative Years and the Beginning of his International Career in

Inter-war Poland (1918–1939)”in Bieńczyk-Missala and Dębski (eds.), RafałLemkin,61–62.

7 R. Lemkin, “Dzieje i charakter reformy prawa karnego we Włoszech”in Kodeks karny faszys-

towski, Warsaw 1929 7–89; Kodeks Karny Republik Sowieckich (1926) (R. Lemkin’s translation

in cooperation with T. Kochanowski); see also: Kodeks karny Rosji Sowieckiej. 1927 (translation

and introduction by R. Lemkin) (1928); R. Lemkin, Ustawodawstwo karne Rosji Sowieckiej.

Kodeks Karny. Procedura Karna (1938).

8 For example, Lemkin edited the new Penal Code of the Republic of Poland in cooperation

with J. Jamont and E.S. Rappaport: Kodeks karny r. 1932 z dostosowanymi do kodeksu tezami

z OrzeczeńSądu Najwyższego (1932).

9 A. Redzik, RafałLemkin (1900–1959) Co-Creator of International Criminal Law (Oﬁcyna

Allerhanda - Instytut Allerhanda 2017) 25–26.

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went to Sweden through Lithuania, and as a polyglot he quickly began to give

lectures in Swedish. Lemkin also cooperated with the Swedish government in

collecting material on Nazi Germany’s policy in Europe. After about a year, he

was given the opportunity to go to the United States, where he taught law at

Duke University.

His major life’s work, entitled Axis Rule in Occupied

Europe, was written there and published by the Carnegie Endowment for Inter-

national Peace in 1944. This book was the ﬁrst to explain the term

“genocide.”

After World War II he served as an advisor on the staff of the chief prosecutor

in the trials of Nazi war criminals in Nuremberg in 1946. He was disappointed

that the term “genocide”was not included in the Nuremberg Charter and the

ﬁnal judgment.

It was also stated that murders committed before the war

were not punishable offenses. Lemkin could not understand why governments’

actions against their own citizens could not be the subject of international law.

While in Europe he visited the displaced persons’camps, met his friends, and

found out that almost 50 members of his family were killed, including his

parents.

He was shocked and depressed by how Europe was so affected by

World War II. His personal experiences inﬂuenced his determination to propose

the convention against genocide in the United Nations (UN), a new, universal

organization founded in 1945. Lemkin devoted absolutely everything to the

adoption of the convention. He gave up his scientiﬁc and professional work and

he stopped writing and lecturing. He devoted his personal relations to the idea

of outlawing genocide, and while lobbying for the convention was difﬁcult and

disruptive for him, still he succeeded. The Convention on the Prevention and

the Punishment of the Crime of Genocide (Genocide Convention, or the Con-

vention) was adopted by the General Assembly of the UN on 9 December 1945

and entered into force on 12 January 1951. Raphael Lemkin was personally

involved in its ratiﬁcation. He conducted hundreds of talks with diplomats and

sent letters to politicians in which he urged the adoption of the Convention.

Raphael Lemkin, who is called the father of the Genocide Convention, was

nominated for the Nobel Peace Prize many times, although he never received it.

He died in New York on 28 August 1959 in poverty and oblivion. The funeral

was attended only by seven relatives and his closest friends. A few days after his

death, a note appeared in the New York Times:

10 D.-L. Frieze (ed.), Totally Unofﬁcial 60–78.

11 Lemkin R., Axis Rule in Occupied Europe: Laws of Occupation –Analysis of Government –

Proposals for Redress (Carnegie Endowment for International Peace 1944).

12 P. Sands, East West Street: On the Origins of “Genocide”and “Crimes Against Humanity”

(W&N 2016) 186–189, 297–299.

13 Ibid. 358–360.

14 See also: J. Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (Palgrave

Macmillan 2008).

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This devoted man did more than any other individual to win formal accept-

ance of the principle that it is criminal to injure or destroy any national,

ethnical, racial or religious group. Raphael Lemkin, once a successful lawyer

in Warsaw, had suffered the loss of his family at the hands of the Nazis,

except for one brother. He had a distinguished carrier as a teacher, lecturer,

and a writer in Poland, but the burden of his ﬁnal years was his crusade

against slavery, degradation, and killing. It was a heavy burden, and it killed

him at the age of 58.

Lemkin’s concept of genocide and its penalization

Raphael Lemkin wrote –in the famous chapter 9 of Axis Rule in Occupied

Europe –that “new conceptions require new terms.”In his work he explained

the concept of “genocide,”which he created by combining the ancient Greek

word genos (race, tribe) with the Latin cide (killing). He pointed out that wars

were increasingly not waged against state sovereignty but against entire popula-

tions. By “genocide”he meant a coordinated plan of different actions directed

at the destruction of a nation or of an ethnic group. He pointed to the disinte-

gration of political and social institutions, of culture, language, national feelings,

religion, and the economic existence of national groups, but also to the depriv-

ation of individual lives, personal security, health, and property. The fact that his

concern was about actions against individuals because of their belonging to

a speciﬁc group, and not because of their individual capacity, was to distinguish

genocide from human rights violations.

He wrote that:

[A]s in the case of homicide, the natural right of existence for individuals is

implied: by the formulation of genocide as a crime, the principle that every

national, racial, and religious group has a natural right of existence is

claimed.

Lemkin distinguished two stages of genocide: “One, destruction of the national

pattern of the oppressed group; the other, the imposition of the national pattern

of the oppressor.”

This probably resulted from the experience imposed by the

powers ruling over neighboring Poland, which, having been for over 100 years

under partitions, experienced Germanization and Russiﬁcation. He broadly pre-

sented genocidal techniques: political, social, cultural, economic, biological,

15 New York Times (31 August 1959) 20.

16 Lemkin, Axis Rule 79.

17 R. Lemkin, “Genocide”(1946) 15 American Scholar 227.

18 Lemkin, Axis Rule op.cit., www.preventgenocide.org/lemkin/AxisRule1944-1.htm

[accessed 5 January 2020].

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physical, religious, and moral ones, referring to German practices in occupied

Europe.

Lemkin believed that genocide should be banned during both war and peace.

He expressed disappointment by the fact that the Nuremberg Tribunal judged

the crimes committed only after the outbreak of World War II. This fact motiv-

ated him to submit a draft convention prohibiting genocidal practices regardless

of the times of their application. As we know, the scope of crimes against

humanity has evolved in this direction.

A part of Lemkin’s concept was penalization of the crime. Because he per-

ceived genocide as an affront to the whole of humanity, he formulated that it

should be introduced into the penal legislation of all states, and because of the

consequences of the crime for international relations he also advocated for uni-

versal criminal jurisdiction.

He argued that genocides are organized by states

or groups supported by states; therefore, the states are not usually interested in

punishing perpetrators.

These rules should be accompanied by provisions on

the protection of national, racial, and religious minority groups placed in

national constitutions and international law. As we now know, plans to adopt

a universal convention on national, ethnic, religious, and racial minorities have

failed to date, and countries have different approaches to their minorities. The

UN General Assembly adopted the Declaration on the Rights of Persons

Belonging to National or Ethnic, Religious, and Linguistic Minorities only on

18 December 1992.

Lemkin’sﬁrst implementation of the ban on genocide was the UN General

Assembly resolution of 11 December 1946, approved unanimously, which

stated that genocide is a crime under international law.

It called for genocide

to be considered as a crime with universal jurisdiction under the domestic law of

all member states. The resolution called for domestic cooperation of all states to

coordinate the international prosecution of genocide.

Two years later, the deﬁnition of genocide was found in the Convention on

the Prevention and Punishment of the Crime of Genocide, adopted in Paris on

9 December 1948. Article I of the Convention declares that states party to it

conﬁrmed that genocide, whether committed in a time of peace or in a time of

war, is a crime under international law, which they undertake to prevent and to

punish. The adopted deﬁnition of genocide corresponded to Lemkin’s main

19 M.Ch. Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Appli-

cation (Cambridge University Press 2011); N. Geras, Crimes Against Humanity: Birth of

a Concept (Manchester University Press 2011); L.N. Sadat, “Crimes Against Humanity in the

Modern Age”(2013) 107 American Journal of International Law 334.

20 Lemkin, Axis Rule 93–94.

21 A.F. Vrdoljak, “Human Rights and Genocide: The Work of Lauterpacht and Lemkin in

Modern International Law”(2010) 20 The European Journal of International Law 1185.

22 UN General Assembly Resolution, No. 47/135.

23 UN General Assembly Resolution, 11 December 1946, A/RES/96-I.

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assumptions,

although it was formulated in a slightly narrower way. According

to it:

Genocide means any of the following acts committed with intent to destroy,

in whole or in part, a national, ethnical, racial or religious group, as such:

a. Killing members of the group;

b. Causing serious bodily or mental harm to members of the group;

c. Deliberately inﬂicting on the group conditions of life calculated to bring

about its physical destruction in whole or in part;

d. Imposing measures intended to prevent births within the group;

e. Forcibly transferring children of the group to another group.

The above deﬁnition was the result of a negotiating process and reﬂected the

compromise reached among the UN member states. In the end political groups

were not included as protected groups, nor was the so-called “cultural geno-

cide”. The need to precisely distinguish genocide from the issue of protecting

national and ethnic minorities, crimes against humanity, and human rights was

not addressed. Political issues were also important. Serious doubts in this regard

were raised by the major powers –the United States, France, and the Soviet

Union. The Soviet Union and China sought to eliminate political groups from

the concept as being difﬁcult to deﬁne precisely. The goal of the USSR was to

identify the crime of genocide as closely as possible with Nazi and racist policies.

This policy was aimed at diverting attention from Soviet mass deportations, kill-

ings, and repression.

France feared the category of cultural genocide because

of the possibility of its association with colonialism.

The issue of how to punish the crime of genocide was also controversial. The

United States was skeptical about the idea of setting up an international criminal

court, and France contested the proposal to criminalize genocide in national

law. The argument of state sovereignty was invoked in both cases. The main

24 A.-D. Rotfeld, “RafałLemkin’s Concept of Genocide”in A. Bieńczyk-Missala (ed.), Civilians

in Contemporary Armed Conﬂicts 225–231.

25 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948,

www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%

20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Geno

cide.pdf [accessed 5 January 2020]. See also: M. Shaw, What is Genocide? (Polity Press

2007); W. Schabas, Genocide in International Law: The Crime of Crimes (Cambridge Univer-

sity Press 2003); A. Jones, Genocide: A Comprehensive Introduction (Routledge 2006);

L. Kuper, Genocide (Yale University Press 1981); S.P. Rosenberg, “Genocide Is a Process,

Not an Event”(2012) 7(1) Genocide Studies and Prevention, https://scholarcommons.usf.

edu/gsp/vol7/iss1/4 [accessed 26 March 2020]; E. D. Weitz, Century of Genocide: Critical

Essays and Eyewitness Accounts (Princeton University Press 2003); B. Valentino, Final Solu-

tions: Mass Killing and Genocide in the 20th Century (Cornell University Press 2004).

26 A. Weiss-Wend, “The Soviet Union and the Genocide Convention: An Exercise in Cold War

Politics”in Bieńczyk-Missala and Dębski (eds.), RafałLemkin, 179–194.

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powers signiﬁcantly contributed to narrowing the deﬁnition of genocide as well

as the weakening of implementation mechanisms.

Given the limited utility of the Convention, especially during the Cold War,

there were allegations that the conventional deﬁnition of genocide had many

shortcomings. They referred mainly to the category of intent; the too-narrow

scope of the groups mentioned in the deﬁnition; and the fact that the deﬁnition

of genocide overlapped with the deﬁnition of crimes against humanity. It is easy

to make such accusations from the perspective of the past decades and the evo-

lution of the scope of crimes against humanity, especially their extension to

times of peace. Raphael Lemkin was not satisﬁed with the Nuremberg trials and

could not predict the evolution of international law.

Despite the difﬁculties in implementing the Genocide Convention, it was never

decided to extend the scope of the crime. The same deﬁnition was included in the

Rome Statute of the International Criminal Court (Article 6), and was also part of

the jurisdiction of ad hoc and hybrid courts, including the International Criminal

Tribunal for the Former Yugoslavia and the International Criminal Tribunal for

Rwanda. The Convention has been ratiﬁed by 152 states,

and the International

Court of Justice (ICJ) has repeatedly stated that the Convention embodies prin-

ciples that are part of general customary international law. The ICJ has also stated

that the prohibition of genocide is a ius cogens norm of international law (peremp-

tory norm) and that no derogation from it is allowed.

Prevention of genocide

Raphael Lemkin’s goal was that genocide would never be repeated. He believed

that banning the annihilation of groups of people in international law because of

their race, national and ethnic character, and religion would have a preventive effect.

The day on which the Convention was adopted was the happiest day in his life.

Researchers of genocide and Lemkin’s ideas rarely refer to the idea of prevention,

which is part of the title of the Convention, focusing mainly on elements of the def-

inition of genocide and the effectiveness of international criminal justice. Meanwhile,

the concept has never again primarily included the idea of prevention.

27 This is the number of ratiﬁcations as of 31 December 2019, https://treaties.un.org/Pages/

ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4&clang=_en [accessed

5 January 2020].

28 S. Power: “A Problem from Hell”: America and the Age of Genocide (Basic Books 2013);

W. Schabas, “Preventing the ‘Odious Scourge’: The United Nations and the Prevention of

Genocide”(2007) 14(2) International Journal on Minority and Group Rights 379; L. Kuper,

The Prevention of Genocide (Yale University Press 1985); S. McLoughlin, The Structural Pre-

vention of Mass Atrocities (Routledge 2014); A.J. Bellamy and A. Lupin, Why We Fail: Obs-

tacles to the Effective Prevention of Mass Atrocities (International Peace Institute June 2015);

A. Bieńczyk-Missala, “Early Warning and the Prevention of Atrocity Crimes: The Role of the

United Nations”in K. Bachmann and D. Heidrich (eds.), The Legacy of Crimes and Crises:

Transitional Justice, Domestic Change and the Role of the International Community (Peter

Lang Edition 2016) 199–207.

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Raphael Lemkin saw the obligation to prevent genocide in broad terms.

First, he believed that international law itself fulﬁlls a preventive function. When

he wrote about the need to adopt legal rules regarding the prohibition of bar-

barism in the 1930s or genocide in the 1940s, he was convinced that any future

convention in this area would ensure the protection of entire groups. Even

during World War II he claimed that the swift adoption of the convention

would prevent the further genocidal policy of Nazi Germany and the changes

which Adolf Hitler sought in the national and ethnic structure in Europe.

Second, Lemkin was convinced that criminal law has a powerful preventive

inﬂuence. He postulated that the need to punish criminals would lead to the

introduction of parallel criminal mechanisms in both domestic and international

law. He believed that punishment would stop other perpetrators from commit-

ting crimes of genocide.

Third, he believed in institutions. In Axis Rule in Occupied Europe, he called

for the establishment of institutions that would allow effective control of occu-

pation practices, and he believed that in addition to law the relevant institutions

could play a preventive role.

Lemkin’s vision of prevention was largely included in the 1948 Convention.

It acknowledged that genocide is a crime of international law and should be pre-

vented. From the point of view of the use of UN organs, the most important

provisions are contained in Article 8, which provides that any state party to the

Convention may request the competent organs of the UN to take the measures

provided for in the Charter which it deems appropriate to prevent and suppress

acts of genocide or other acts mentioned in Article 3, such as collusion to

commit genocide, direct and public incitement to commit crimes, complicity,

and more.

However, the Convention does not precisely set out the nature and extent of the

prevention obligation. The focus was on the need to punish perpetrators. Thus,

states were obliged to establish domestic law that would allow them to be found

guilty of genocide, regardless of whether they are constitutionally responsible mem-

bers of the government, public ofﬁcials, or private individuals (Article 4).

It is not

explained what other actions should be taken by states to prevent genocide.

This lack of precision also concerns the area of international cooperation.

There were discussions about states, “competent”UN bodies, and “appropri-

ate”instruments for preventing and suppressing genocide, and the source of

these instruments was to be the UN Charter. It is not known in what exact situ-

ations a particular state was to turn, to which UN body, nor exactly what action

should be taken. Nonetheless, this provision could prove sufﬁcient in the event

there is the political will to take an action.

29 Lemkin, Axis Rule, Chapter IX, ibid.

30 O. Ben-Naftali, “The Obligations to Prevent and to Punish Genocide”in P. Gaeta (ed.), The

UN Genocide Convention: A Commentary (Oxford University Press 2009) 36–44.

31 Ibid.

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The high level of generality of records and the imprecise language have cer-

tainly contributed to the overall abandonment of greater efforts to prevent geno-

cide after the adoption of the Convention. In the times of inter-national rivalry

during the Cold War period, in principle genocide was not discussed. Works on

the establishment of an international criminal tribunal were blocked, and states

and experts focused rather on matters related to the creation of an international

human rights protection system. After the turn of 1989, however, it turned out

that the international community did not have an adequate response to the threat

of genocide. Efforts were not sufﬁcient to stop the massacres in the Balkans,

Somalia, or Rwanda. What is more, the international community was unable to

respond effectively, often compromising –as in Srebrenica in 1995, where the

crime took place of killing over 8,000 Bosnian Muslims who were counting on

effective shelter in the UN security zone. The events of the 1990s changed the

thinking about the reality of international crimes, and the inhumane displacement

in Kosovo in 1999

motivated experts and state representatives to seek new solu-

tions in the sphere of preventing and responding to international crimes. An

important role in this respect was played by the UN Secretary-General Koﬁ

Annan, who argued that the twenty-ﬁrst century must be the century of

prevention,

and proclaimed the need to adopt a “culture of prevention”and to

look through a “prevention lens”when undertaking development activities.

A broader approach to the idea of prevention can be found in the concept of the

responsibility to protect (R2P), presented in the report of the International Com-

mission on Intervention and State Sovereignty of 2001.

It proposed a new

approach to the issue of state sovereignty and the obligation to prevent and respond

to situations of mass suffering of the population. The UN General Assembly, which

accepted the idea of the responsibility of states and the international community for

civil protection, adopted the concept in a limited, mainly preventive, scope in the

Final Document of the jubilee UN summit in 2005. It announced the provision of

preventive support to states for civil protection, including construction of their

internal potential in this ﬁeld. The need to develop early-warning capabilities and

UN prevention instruments was also recognized.

These provisions have been

adopted by consensus by all member countries of the UN. It is worth adding that

32 A. Bieńczyk-Missala, “Kosovo: The First War for Human Rights”in M. Madej (ed.), Western

Military Interventions After the Cold War: Evaluation of the Wars of the West (Routledge

2019).

33 Address by Secretary-General KoﬁAnnan at the opening of the 54th session of the Commis-

sion on Human Rights, 18.03.1998, SG/SM/6487 HR/4355.

34 UN Secretary-General Report, Prevention of Armed Conﬂict, A/55/985–S/2001/574,

07.06.2001.

35 Report of the International Commission on Intervention and State Sovereignty, The Respon-

sibility to Protect, 12.2001, http://responsibilitytoprotect.org/ICISS%20Report.pdf

[accessed 5 January 2020].

36 General Assembly, 2005 World Summit Outcome, par. 138–140, www.un.org/en/prevent

genocide/adviser/pdf/World%20Summit%20Outcome%20Document.pdf#page=30

[accessed 5 January 2020].

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regional organizations have also made efforts to build capacity in order to prevent

mass crimes, including genocide. This applies especially to the African Union and

the Economic Community of West African States, which have granted themselves

the right to armed intervention in situations where there are threats of genocide. In

2006, the International Conference of the Great Lakes Region adopted the Proto-

col on the Prevention and Punishment of the Crime of Genocide, War Crimes and

Crimes Against Humanity and All Forms of Discrimination.

In 2007, the obligation to prevent was conﬁrmed by the ICJ. It considered

Bosnia and Herzegovina’s request for interim measures against Former Yugo-

slavia (FRY, today the Republic of Serbia). It had to answer the question

whether FRY was obliged to take action to prevent the genocide in Srebrenica

in June 1995. In 2007, the ICJ ruled that FRY had not complied with its obli-

gation to prevent genocide and had not imposed a penalty on perpetrators as

provided for in Article 1 of the Convention. The ICJ noted that the prevention

obligation applies to all parties, is not territorially limited, and refers to immedi-

ate and effective action using all necessary funds.

Sovereignty and humanitarian intervention

An important issue raised in the discussion about genocide and other mass crimes

is the problem of admissible actions of the international community in situations

of an oppressive policy by states towards their own population. In the past, discus-

sions were held about a war of just, humanitarian intervention, until ﬁnally the

concept of R2P was adopted.

Its creators proposed a new understanding of the

sovereignty of the state as including a responsibility for civil protection,

and

deﬁned the responsibility of the international community in three dimensions –

prevention, response, and reconstruction –understood as the restoration of

a situation of respect for human rights.

This concept has evolved with its

approval by UN General Assembly in its Summit Outcome Document in 2000

37 See: A. Bieńczyk-Missala, Zapobieganie masowym naruszeniom praw człowieka. Międzynaro-

dowe instytucje i instrumenty (WN Scholar 2018) 70–78.

38 A.J. Bellamy and T. Dunne, The Oxford Handbook of the Responsibility to Protect (Oxford

University Press 2016); W.A. Knight and F. Egerton, The Routledge Handbook of the Respon-

sibility to Protect (Routledge 2014); J. Genser and I. Cotler, The Responsibility to Protect: The

Promise of Stopping Mass Atrocities in our Time (Oxford University Press 2012); R.H. Cooper

and J. Voïnov Kohler (eds.), Responsibility to Protect: The Global Moral Compact for the 21st

Century (Palgrave Macmillan 2009).

39 L. Axworthy, “RtoP and the Evolution of State Sovereignty”in Genser and Cotler (eds.), The

Responsibility to Protect 3–16.

40 Report of the International Commission on Intervention and State Sovereignty, The Respon-

sibility to Protect, December 2001, http://responsibilitytoprotect.org/ICISS%20Report.pdf

[accessed 5 January 2020].

41 General Assembly, 2005 World Summit Outcome, par. 138–140, www.un.org/en/prevent

genocide/adviser/pdf/World%20Summit%20Outcome%20Document.pdf#page=30

[accessed 5 January 2020].

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as well as numerous reports of the UN Secretary-General. In the January 2009

Report Implementing the Responsibility to Protect, he proposed three dimen-

sions of R2P, which included: responsibility of the state for civil protection; inter-

national assistance to states in carrying out their duties; and an international

response.

At each stage of the discussion, armed intervention was indicated as

the last possible international instrument, except that the right to use force has

not changed since the adoption of the UN Charter of 1945. In light of inter-

national law therefore, only the Security Council can decide to intervene.

Raphael Lemkin also referred to the issue of state sovereignty and humanitar-

ian intervention. As a student, he asked professors why the community did not

respond to the massacres of the Armenians. In reply he heard an anecdote

about a farmer deciding to kill his own chickens.

However, he disagreed with

the idea that the authorities could regulate their relations with citizens by resort-

ing to inhumane instruments. He was an advocate of an innovative approach to

the sovereignty of the state for those times, maintaining that it could not be

a pass/excuse for criminal practices.

He also expressed a favorable attitude towards humanitarian intervention. He

referred to it in his manuscript The Introduction to the Study of Genocide, written

in the 1950s, in which he extensively referred to Professor of International Law

Ellery C. Stowell

and his deﬁnition of a humanitarian intervention, according to

which: “Justiﬁable use of force for the purpose of protecting the inhabitants of

another state from treatment so arbitrary and persistently abusive as to exceed the

limits within which the sovereign is presumed to act with reason and justice.”

Lemkin drew attention to the reluctance of states towards the concept of the

legality of humanitarian interventions, and he advocated for its acceptance, citing

the arguments of recognized philosophers and lawyers like Hugo Grotius, Johann

Kaspar Bluntschli, Henry Wheaton, John Westlake, August Wilhelm Heffner, and

Karl von Rotteck, as well as the American president Theodore Roosevelt. In light

of Stowell’s views, he questioned the belief that the independence of states and

the principle of non-interference in internal affairs are “sacred”even in the event

of serious violations of international law, when human life is at stake. He believed

interventions to protect lives should be allowed.

42 B. Ki-moon, Implementing the Responsibility to Protect, Report of the Secretary-General,

A/63/677, 12 January 2009.

43 P. Grzebyk, “Miejsce interwencji zbrojnej w koncepcji odpowiedzialność za ochronę”(2015)

51 Stosunki Międzynarodowe. International Relations 61.

44 H. Yahraes, “He Gave a Name to the World’s Most Horrible Crime”(3 March 1951) Col-

lier’s, www.unz.com/print/Colliers-1951mar03-00028 [accessed 5 January 2020]; Sands,

East West Street 146–149; Frieze (ed.), Totally Unofﬁcial 20.

45 E.C. Stowell, International Law: A Restatement of Principles in Conformity with Actual Prac-

tice (Henry Holt 1931).

46 S.L. Jacobs (ed.), Lemkin on Genocide (Lexington Books 2012) 47–48.

47 S.L. Jacobs, “The Human, the Humane, and the Humanitarian: Their Implications and Con-

sequences in Raphael Lemkin’s Work on Genocide”in Bieńczyk-Missala and Dębski (eds.),

RafałLemkin 153–164.

14 Agnieszka Bieńczyk-Missala

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The problem of interventions undertaken for humanitarian reasons remains

one of the most controversial issues, and history has proven –especially in the

interventions in Somalia in 1993, Kosovo in 1999, and Libya in 2011 –that

there are no simple solutions to the complicated situations of genocide and

other mass crimes. Lemkin’s interest in the limits of state sovereignty and the

idea of humanitarian intervention demonstrate that he, believing in the power

of international law, did not limit his concepts to deﬁnitions and legal standards.

He believed that the international community must have instruments for imple-

menting the law and be able to provide practical assistance to victims. He

believed that international law is an expression of moral feelings,

must have

a social and human meaning, and must be a real instrument for human progress

and justice, and certainly not an obstacle to them.

***

Raphael Lemkin belonged to that small group of lawyers who were extremely

involved in building a new international legal order after World War II, aimed at

improving the situation of individuals and entire groups. Lemkin’s greatest suc-

cess was that despite the numerous difﬁculties, including a lack of understanding,

a huge personal tragedy, and a struggle with the political will of states, he turned

his personal idea into a universal standard: the Convention on the Prevention and

Punishment of the Crime of Genocide. His concept and message have always

been universal. He did not focus on any one particular case of genocide, but dealt

with colonial crimes, Indian massacres, mass murders in Soviet Russia, the Great

Famine in Ukraine, and many others. He extrapolated common ethnic, political,

and genocidal patterns, which can be considered his personal contribution to

comparative studies of genocide. The Holocaust was the massive tragedy that

eventually pushed him to ﬁght for the Convention in the UN.

Lemkin’s merits go beyond the Genocide Convention. He consistently dem-

onstrated his humanist attitude that international relations were about people.

States are not entitled to decide on the existence of population groups, or effect

their annihilation. Finally, Lemkin showed that one man can make a difference.

He was not a passive observer of reality, but an example of positive activism for

a better world.

48 Jacobs (ed.), Lemkin on Genocide 10–11.

49 R. Lemkin, “The Legal Case Against Hitler”(24 February 1945) The Nation 205.

Raphael Lemkin’s legacy 15

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2 The crime of genocide in Ukraine

(1932–1933)

Olga Wasiuta

In the memory of the Ukrainians, as well as other nations, the Holodomor

(Great Famine) in 1932–1933 in Ukraine will always be recalled as one of the

cruellest, emotionally difﬁcult to perceive, tragedies of the twentieth century.

Yet at the same time the Holodomor is a historical occurrence that took place

at a deﬁned time and place and was the result of speciﬁc people’s activity. How-

ever, 85 years after the “end”of famine/genocide in Ukraine we still do not

know how many people died of unbelievable torture as a result of the homicidal,

murderous, and atrocious policy of Joseph Stalin and other loyal leaders of the

communist ideology: 5 million, 8 million, or even 12 million or more?

Since 2018, 24 countries have ofﬁcially declared the Holodomor as

a genocide committed against the Ukrainian people. The fact is that a genocide

is indisputable and approved by the international community –except, however,

Russia, where the issue of the Holodomor does not exist and reminding people

of Stalin’s genocidal policy is regarded as hostile, anti-Russian propaganda. The

Great Famine was recognized as a genocide by the United Nations (UN) Gen-

eral Assembly (November 2003), the European Parliament (23 October 2008)

and the Parliamentary Assembly of the Council of Europe (28 April 2010). In

2016 the Parliament of Ukraine appealed to democratic states to recognize the

Great Famine of 1932–1933 as a genocide against the Ukrainian people. At the

72nd session of the UN General Assembly in New York on 20 September 2017,

the President of Ukraine Petro Poroszenko appealed for a common, global

1 In 1932–1933, as a result of an artiﬁcially-provoked famine, according to various sources and

demographers’estimations between 7 and 10 million people died of famine and its effects

(physical exhaustion, diseases, mass cannibalism). The same estimations are presented in the

UN Resolution conﬁrmed by more than 50 states (Address of the President of Ukraine Viktor

Yushchenko to the Ukrainian people, to the people’s deputies of Ukraine in connection with

the consideration of the draft Law of Ukraine ‘On the Holodomor of 1932–1933 in Ukraine’,

16.11.2006, http://ww7.president.gov.ua/news/data/print/11832.html [Accessed

11.01.2019]; ‘Joint Statement by the Delegations of the UN Member States on the 70th

Anniversary of the Holodomor in Ukraine 1932–33’, 7 November 2003, www.prezident.gov.

ua/content/150_10.html [accessed 11.01.2019].

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recognition of the Holodomor as a genocide committed against the Ukrainian

people.

At the 85th anniversary of the Great Famine in Ukraine, the US Senate rec-

ognized it as genocide in a resolution which marked the ﬁrst legal act in the

history of the US Congress devoted to this tragedy. The document includes the

conclusions of the US government’s Commission on the Ukraine Famine (of

22 April 1988), stating that Stalin and his regime committed genocide on the

Ukrainian people in 1932–1933. In the accepted resolution they condemned

the systemic violation of Ukrainians’human rights, including the right to self-

determination and freedom of speech in Ukraine.

On 24 November 2018, on the 85th anniversary of the Holodomor, Ukrain-

ians all over the world lit candles as a symbol of collective memory of the most

horriﬁc tragedy in Ukrainian history; one which wreaked havoc on millions of

innocent people, who were the victims of the Holodomor of 1932–1933 –

a famine organized by human beings, planned and executed by the Russian

communists and Stalin’s regime. The Holodomor is recognized by the Ukrain-

ian Parliament as a genocide against the Ukrainians. For decades the Soviet

Union had tried to keep this atrocious act and national tragedy secret and the

communist regime emphatically negated it. Millions of people, mainly farmers –

the backbone of Ukrainian identity, culture and tradition –were literally starved

to death within two years. Stalin’s policy and regime carried out the genocide in

order to make the Ukrainians surrender to the Soviet authority and to “resolve”

the Ukrainian issue. The results of research conducted in Ukraine prove that

93 percent of all the victims were villagers. According to the available statistics,

at the height of the Holodomor 25,000 Ukrainians died every day. At the same

time, during these two years the Soviet Union sold 1.7 million tons of grain on

the Western markets.

During the USSR period three waves of famine swept over Ukraine: the ﬁrst

right after the October Revolution of 1921–1923; the Holodomor in

2“Warsaw: The ecunemic service at the 85th anniversary of The Great Famine in Ukraine”,

25.11.2018, https://ekai.pl/warszawa-ekumeniczne-nabozenstwo-w-85-rocznice-wielkiego-

glodu-na-ukrainie/[accessed 12.01.2019].

3“TheUSSenate:Thefamineisagenocide”, 04.10.2018, www.istpravda.com.ua/short/

2018/10/4/153037/[accessed 12.01.2019]; “The US Congress has recognized the Holodo-

mor as genocide against the Ukrainian people”, https://gordonua.com/eng/news/world

news/-u-kongresi-ssha-viznali-golodomor-genotsidom-ukrainian-nation-575279.html

[accessed 12.01.2019]; Kijów: amerykańscy senatorowie uznali Wielki Głód za ludobójstwo,

26.11.2018, www.tvn24.pl/wiadomosci-ze-swiata,2/kijow-senat-usa-uznal-wielki-glod-za-

ludobojstwo,873661.html [accessed 12.01.2019].

4“Statement on commemoration of victims of the Holodomor of 1932–1933 in Ukraine. As

delivered by Ambassador Ihor Prokopchuk, Permanent Representative of Ukraine to the Inter-

national Organizations in Vienna, to the 1203rd meeting of the Permanent Council”,

22.11.2018, www.osce.org/permanent-council/404429?download=true [accessed

15.01.2019].

The crime of genocide in Ukraine 17

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1932–1933; and the third after World War II, in 1946–1947.

The ﬁrst famine

in Ukraine in 1921–1923 was, similar to the two subsequent ones, the result of

the Bolsheviks’political-ideological decisions. On one hand they wanted, as they

say today with a beautiful word, to “pacify”the rebellious Ukrainians, and on

the other, to gain money to install the “red plague”all over the world.

The

“paciﬁcation”was nothing other than a policy of murderous terror, the aim of

which was to nip the Ukrainian quest for independence in the bud. The Bol-

sheviks believed that imprisonment, forced labour, public executions and the

“conﬁscation”of agricultural products would convince the Ukrainians to accept

communism, to stop their resistance to the new power, and most importantly,

eliminate the afﬂuent people from the society.

However, the famine in the 1930s –the most tragic in its effects

–was not

discussed at all, because it was an act of genocide against the Ukrainian

people. The compulsory collectivization of Ukrainian farming, food conﬁsca-

tion, and the repressions which accompanied the introduction of the new agri-

cultural system caused large-scale starvation in one of the most fertile areas of

Europe.

For a long time, the Great Famine of 1932–1933 remained one of the terrae

incognita in Soviet and Ukrainian history. This disaster was not, however, simi-

lar to the other cases of famine. It was the direct consequence of a new system

of exploitation of farmers. In the period 1921–1922 the Soviet regime admitted

that people suffered from starvation, and openly asked for international aid,

while in the disaster of 1932–1933 it used propaganda to silence the voices of

foreign public opinion drawing attention to the tragedy.

For a deeper insight into what the Holodomor was actually like, the following

facts should be highlighted: when researchers talk about the Holodomor of

1932–1933, they refer to the period from April 1932 to November 1933.

Within just those 17 months, i.e. about 500 days, millions of people died in

Ukraine. It is not possible to accurately count the number of direct and indirect

5 A. Dubynanska, “The Truth about Three Cases of the Famine”.“Дзеркало тижня”,nr44

(419), 16–22 Листопада 2002 року.

6 Cz. Rajca and M. Łesiów, The Famine in Ukraine/Głód w Ukrainie. Wydawnictwo Werset,

Lublin 2005, p. 41; O. Veselova, V. Marochko, and O. Movchan, Holodomor in Ukraine,

1921–1923, 1932–1933, 1946–1947: Crimes against the People.М.П. Cat, Kyiv 2000; A.Kulish,

Holodomor of 1921–1923 in Rus-Ukraine as a Continuation of the Ethnic War of 1917–1921.

Association of Holodomor Researchers in Ukraine, Kyiv 2003.

7“The citizen-guillotine and the citizen-famine. Three scenes of genocide in Ukraine”/Obywatelka

gilotyna i obywatel głód. Trzy odsłony ludobójstwa w Ukrainie, www.pch24.pl/obywatelka-gilotyna-

i-obywatel-glod–trzy-odslony-ludobojstwa-na-ukrainie,64342,i.html [accessed 15.01.2019].

8The National Trial in Ukraine: Past and Present Times –Documents and Materials.У2ч.Ч.2,

Kyiv 1997; International Commission on the Investigation of Hunger in Ukraine 1932–1933.

“Final Report 1990”. Kyiv 1992; “The Holodomor of 1932–1933 in Ukraine: Causes and

Consequences”. International Scientiﬁc Conference. Kyiv, September 9–10, 1993. Materials,

Kyiv 1995.

18 Olga Wasiuta

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victims.

Among historians there is still a debate on how many victims died: 5,

7, 9, or 10 million or maybe more? Nevertheless it is unquestionable that there

were millions of innocent victims. And if indirect losses, i.e. children unborn

due to the Holodomor, are taken into account the number of victims reaches as

high as 14 million.

The Great Famine occurred in one of the most fertile soils in Europe and

during a time of peace, during which the USSR exported huge amounts of

grain from the area. In Ukraine the grain, and later all food, was seized by the

communist authorities. In 1932 in the USSR a state property-protection law

was introduced, under which a man could be shot even for taking one ear of

grain from the ﬁeld of a kolkhoz (collective farm).

The decree imposed

a complete blockade of a village due to the alleged sabotaging of the compul-

sory delivery of grain. Many farmers broke the law in order to survive, and

escaped to the cities, where food allocations for working people were enforced.

Farmers attempted to escape to Russia, but the administrative borders of

Ukraine were controlled by the USSR army. Most historians claim that the

famine was generated artiﬁcially to break farmers’resistance to collective agricul-

ture, a resistance which was the greatest in Ukraine.

The Soviet authorities scrupulously cleaned up the traces of genocide. The

GPU (State Political Directorate –the Soviet political police, a successor of the

“Cheka”created by Feliks Dzierżyński and a predecessor of the NKVD, or

People’s Commissariat for Internal Affairs), forbade public ofﬁcials from report-

ing famine as a cause of death. When in the spring of 1933 the death toll

reached a massive scale, the administration refrained from issuing death certiﬁ-

cates and the dead were simply buried. At the height of the Great Famine,

25,000 people died every day; i.e. 1,000 every hour or 17 people

every minute.

The famine wreaked havoc on all villages. Numerous cases of

cannibalism were reported. Children suffered most: it is estimated that one-third

of all children in the region lost their lives. Very often parents could not stand

the emotional strain of dealing with starvation, and killed themselves and their

children. The most honest and hard-working died. Human relations changed.

9 S. Kulchytsky, Holodomor 1932–1933 as Genocide: Difﬁculties of Awareness. Nash chas., Kyiv

2008.

10 E. Shnore and I. Pavle, “The Famine in Ukraine”/“Український історичний журнал”, 2012,

nr 6, pp. 85–95.

11 K. Laskowska, “Crime in Russia from the Crime Science and Crime Code Perspectives”/

Przestępczość w Rosji z perspektywy kryminologii i prawa karnego. Wydawnictwo Temida 2,

2016, p. 66; Studia z dziejów Rosji i Europy Środkowo-Wschodniej, Tom 43. Zakład Narodowy

im. Ossolińskich, 2008, p. 277.

12 “The President of the Institute of National Remembrance: the victims of the Great Famine in

Ukraine included also the Polish people”, https://dzieje.pl/aktualnosci/prezes-ipn-oﬁar

ami-wielkiego-glodu-na-ukrainie-byli-tez-polacy [accessed 14.01.2019].

13 V. Yushchenko, “Telling about the tragedy”, www.belarus.mfa.gov.ua/belarus/ua/1229.

htm [accessed 11.01.2019].

The crime of genocide in Ukraine 19

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When the famine ﬁrst started, farmers helped one another, but as it spread and

grew in strength everyone thought only about themselves and how to survive.

The arsenal of repressive measures included the above-mentioned famous

state property-protection (this is the full name of the law: state property-

protection law) law, which played a decisive role and was published on

7 August 1932, at the height of the war between farmers and the regime. This

law speciﬁcally provided for ten years in prison camps or the death penalty for

“any theft or waste of socialistic property”. The issue date of the decree was not

accidental. It was aimed at preventing attempts by starving farmers’families to

illegally gather grain during the harvest. In the face of the approaching winter,

people watched all the crops being transported to the central warehouses, so

under cover of night they attempted to gather even stray ears in the ﬁelds. The

law permitted the shooting of a person taking an ear of grain from a kolkhoz

ﬁeld. People dubbed this law as “the law on ears”, as the people were most

often punished for stealing a few ears of wheat or rye from kolkhoz ﬁelds.

The

waves of famine migration started at this time, and the authorities reacted to it

by introducing passports and a ban on travelling by train.

A consecutive step taken by the authorities was to isolate the rural areas

affected by starvation from the rest of the country. The decree of 22 Jan-

uary 1933, signed by Stalin and Vyacheslav Molotov, Chairman of the Council

of People’s Commissars of the Soviet Union, was the legal basis for this action.

It stated that local authorities and the GPU “under no condition shall allow vil-

lagers to leave their place of living”due to the alleged sabotaging of the com-

pulsory delivery of grain. In order to fulﬁl the unrealistic production norms

imposed, grain was callously impressed and taken from farmers without leaving

them an ear of grain for planting or making ﬂour. Under this law, a ban on

selling train tickets in the affected areas was introduced, and the roads were

blocked and controlled by organized military inspection posts. Scrupulous con-

trols seized food transported to the affected areas. The whole region was

patrolled by special military and police units so that farmers could not escape

from the villages where they and their families were dying. At the same time,

the authorities denied that people in Ukraine ware starving, and refused any aid

from abroad.

The human suffering and atrocities underlying these facts and data are height-

ened by the fact that, as mentioned above, in 1933 –at the very time when

14 The National Tragedy: The Documents and Materials about the Famine 1932–1933 in Dnipro-

petrovsk Oblast. Compiled by O.V. Kasvanov. Dnipropetrovsk, 1993, p. 67, 72, 73; 33rd:

Hunger. People’s Book Memorial. Compiled by L.B. Kovalenko and V.A. Maniak. Soviet

Writer Publishing House, Kyiv, 1991, p. 71.

15 S. Kulchytsky, “The causes of the 1933 Famine in Ukraine: One page of a forgotten book”.

Mirror of the Week, 16–22 August 2003, nr 31 (456).

16 The Famine 1932–1933 in Ukraine: Seen with the Historian’s Eyes, My Document. Compiled

by R.Y. Pyrig. Politwydaw Ukrainy, Kyiv 1990, p. 308.

17 The Famine 1932–1933 in Ukraine, p. 254, 257, 284.

20 Olga Wasiuta

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millions of Ukrainian citizens were dying of starvation –the Soviet Union

exported about 1 billion tons of grain to Western markets. According to Russian

historian Roy Medvedev, the grain was sold almost for a song due to the eco-

nomic crisis in Western Europe. At the same time, even half of the grain

exported by the USSR during this 1932–1933 period would have been enough

to save the Ukrainian people from famine.

The victory of the Bolsheviks in the civil war and their seizure of power in

1917 would not have been possible without the use of media. During the time

of the ﬁrst famine, 75 Bolshevik newspapers were established, with a total circu-

lation of 600,000, with money from the German General Staff. These were dis-

tributed among soldiers and workers. “Our most important weapon is print”

claimed Stalin in 1921.

According to most archive documents, “The Great

Book of Recollections”, and historical research, the famine in Ukraine was

aimed ﬁrst of all at the intelligentsia and farmers, which were –quite logically

and legitimately –considered the base of the Ukrainian independence move-

ment, and the ﬁrst famine was not a consequence of natural actions but a direct

consequence of Stalin’s policy. It was necessary to destroy national values in the

Ukrainian people in the villages and stultify their quest for independence.

Besides terror by hunger committed on the Ukrainians, mass deportations of

the intelligentsia and individual persecutions were also applied. Abandoned vil-

lages were inhabited by newcomers from Russia.

The 1932–1933 famine was also the effect of the remodelling of villages, i.e.

the destruction of the kulaks

and individual farmers, who were usually the

backbone of the local society and thanks to whom a village held together. The

newly developed kolkhozes had low productivity as farmers were not willing to

work well in ﬁelds owned by Soviets. At the same time, according to the polit-

ical party’s plans overall productivity was supposed to grow as the USSR bought

everything necessary to boost heavy industry from the money obtained from

selling grain. This hyper-industrialization was thus clearly implemented at the

cost of rural villages. Stalin extracted everything from a farmer, to the last kernel

of grain. He also began implementing his programme against kulaks, i.e. their

culture and spirit, and these most important values suffered the greatest conse-

quences over time.

So why was starvation targeted only at farmers? At that time, around 90 per-

cent of villagers were Ukrainians; they were the representatives of Ukrainian

tradition and national spirit. The Holodomor broke the backbone of their ethos

and strongly inﬂuenced the mentality of the nation. It clipped the wings of the

18 The Famine and Repression of Polish People in Ukraine. (ed.) R. Dzwonkowski SAC (Society

of the Catholic Apostolate), Towarzystwo Naukowe KUL, Lublin 2005.

19 K. Raszyński. “Serving a lie”, www.polskieradio.pl/media/print.aspx?id=35 [accessed

18.01.2019].

20 “Kulaks”was the term used to describe peasants with over 8 acres (3.2 hectares) of land

towards the end of the Russian Empire.

The crime of genocide in Ukraine 21

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Ukrainian people –exterminating farmers and destroying villages meant elimin-

ating that social class upon which Ukraine’s social development rested.

To condemn millions of people to death in the very area known for its fertility

involved a series of legal and organizational actions. It was not that easy to

starve people in the area where farmers could harvest several times a better crop

than anywhere else. Russia had always perceived Ukraine as a colony which

could be continually robbed under various pretences, and famine was for Rus-

sians the best method to destroy the Ukrainians’quest for independence. The

totalitarian regime of the USSR subordinated all spheres of social life to the

state. This system simply did not allow for different interpretations of history

than those in line with the Communist Party’sofﬁcial documentation and ver-

sion of events. The party was interested in destroying, keeping secret, or falsify-

ing facts which were not in accordance with its ofﬁcial version of history and

which could threaten the existence of the USSR itself.

Preventive measures taken by the Kremlin a day before the mass genocide

began prove that Stalin had been preparing for this tragedy and trying to pre-

clude dissemination of information about it.

In a letter to Lazar Kaganovich,

First Secretary of the Communist Party of Moscow City, on 11 August 1932,

Stalin warned that if no steps were taken “we can lose Ukraine”.

The letter

shows Stalin’s fear, and organizing the artiﬁcial famine was his reaction to the

threat. Stalin’s motive to subordinate Ukraine at any cost led to millions of

deaths from starvation, and his ﬁrm decision to achieve his intention was not

a mystery in the Kremlin. The hidden goal of genocide in Ukraine was to

reduce the Ukrainian population and replace it with people from other parts of

the USSR, and in this way quench any movements for independence.

At that time the international situation was advantageous for the USSR, as

some democratic states were establishing closer ties with the communist empire

in the face of the Nazi threat. It is crucial to note that their relations improved

in 1932, before the Great Famine happened. In order to organize the Holodo-

mor, Moscow needed peace on the international stage and changed its policy

early enough to achieve its goals.

21 O. Vasyuta and S. Vasyuta, Russian Hybrid War against Ukraine. Arcana, Kraków 2017.

22 ‘The conspiracy of silence: how the West reacts to the Famine in Ukraine 1932–1933’,

2018.11.24, http://argumentua.com/stati/zmova-movchannya-yak-zakh-d-reaguvav-na-

golodomor-ukra-nts-v-1932-1933-rok-v

23 Stalin to Kaganovich: Correspondence, 1931–1936. Compiled by O.V. Khlevnyuk, R.W.

Davis, L.P. Kosheleva, E.A. Ris, and L.A. Horn. Federal Archive Service of Russia; The Rus-

sian State Archive of Socio-Political History. ROSSPEN, Moscow 2001, p. 274.

24 A. Bierielovich (ed.), Russian Village with the Eyes of Joint State Political Directorate: The

People’s Commissariat for Internal Affairs, 1918–1939. Documents and materials, 4 vols. Vol.

3: 1930–1934, Book 2. Moscow 2005, p. 572; A. Bierielovich (ed.), Soviet Village in the Eyes

of the Cheka-OGPU-NKVD, 1918–1939. Documents and materials, 4 volumes. Vol. 3,

1930–1934. Book 2. Russian Political Encyclopedia (ROSSPEN), Moscow 2005.

25 A. Papuga, The Conspiracy of Silence: How the West Reacts to the Famine in Ukraine

1932–1933.Видавець Олег Філюк, Kyiv 2018.

22 Olga Wasiuta

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The issue of international recognition of the Great Famine of 1932–1933 in

Ukraine as genocide on the Ukrainian people was important during this time.

Starting in 1934, when the US Congress decided to condemn this act of exter-

mination of Ukrainians, many countries, institutions, and researchers supported

recognition of the Holodomor as an atrocity targeted at the Ukrainian people.

As emphasized by Professor Roman Serbyn:

the historicity of the Ukrainian famine of 1932–1933 is no longer chal-

lenged. What is still disputed is the number of victims, the reasons for the

catastrophe, and its nature. Estimates of loss of life from starvation and

related diseases vary from three to ten million.

Raphael Lemkin is the author of the term “genocide”, one of the initiators of

its deﬁnition, and co-author of the legal deﬁnition of genocide.

He considered

the famine in 1932–1933 in Ukraine as a typical example of Soviet genocide,

the longest and most widespread Russiﬁcation and destruction of the Ukrainian

people.

He was the ﬁrst Western scientist who analysed the famine in the con-

text of the 1948 Convention on the Prevention and Punishment of the Crime

of Genocide. As Professor Serbyn said, in 1953 Lemkin called on the UN to say

that the USSR and its satellites were guilty of breaking the Convention on Geno-

cide because [of] their planned campaigns to destroy minorities behind the ‘iron

curtain’.

That same year in his article ‘Investigation of Soviet Genocide by the

U.N.’, Lemkin claims that it is an irony of history that eight million Ukrainians

had to die of genocidal starvation, that a thousand Ukrainians had to be des-

troyed in Vinnytsia, and that countless numbers of Ukrainian women and chil-

dren had to be buried in salt mines before the world conscience was shocked.

26 M. Doroshko and W. Golovchenko, “Holodomor of 1932–33 in Ukraine as genocide: the

problem of international recognition”. Current Issues in International Relations, 1 (46),

2017, pp. 5–10.

27 R. Serbyn, “The Ukrainian famine of 1932–1933 as genocide in the light of the UN Conven-

tion of 1948”. Ukrainian Quarterly, 2008, 2, p. 181.

28 R. Serbyn, “Lemkin on the Ukrainian genocide”. Journal of International Criminal Justice,

2009, 7 (1), pp. 123–130.

29 R. Lemkin, Papers, New York Public Library, Manuscripts and Archives Division, Astor,

Lenox and Tilden Foundation, Raphael Lemkin ZL-273. Reel 3. 1953; L.Y. Luciuk, Holodo-

mor: Reﬂections on the Great Famine of 1932–1933 in Soviet Ukraine. Kashtan Press, Kings-

ton 2008; R. Lemkin, “Soviet Genocide in Ukraine: New York 1953”, Holodomor Studies

Journal, 1 (1), Winter–Spring 2009, pp. 3–8; R. Serbyn and S.Grabovsky, “Rafael Lemkin

and the Holodomor as genocide of the Ukrainian people”, http://shron1.chtyvo.org.ua/

Lemkin_Rafal/Radianskyi_henotsyd_v_Ukraini.pdf [accessed 18.01.2019].

30 R. Serbyn, “Raphael Lemkin’s conceptualization of the crime of genocide and his analysis of

the Ukrainian genocide”in R. Lemkin, Soviet Genocide in Ukraine. Article was published in

28 languages. R. Serbyn (ed.), O. Stasiuk (compiler). Maisternia Knyhy, Kyiv 2009, p. 16.

31 D. Irvin-Erickso, Raphael Lemkin and the Concept of Genocide. University of Pennsylvania

Press, 2016, p. 207.

The crime of genocide in Ukraine 23

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While the Ukrainian population was too large to be completely destroyed, the

religious, intellectual, and political elites were rather small and easy to eliminate.

Therefore the Russian authorities applied a common set of tools: massive exter-

mination, deportation, forced labour, exile, and famine.

Lemkin believed that for as long as Ukraine preserved its unity, language and

culture, and Ukrainians recognized their identity and strove for independence, it

would constitute a serious threat to Soviets. It is not surprising that the com-

munist leaders paid utmost attention to the Russiﬁcation of this independent

nation and decided to remake it to match the model of the uniform “Russian

nation”. Ukraine is not and never was Russian. Their culture, temper, language

and religion –in all these aspects Ukrainians are different. They rejected Mos-

cow’s collectivization, and accepted deportation and even death in their efforts

to ﬁght it.

According to Professor Serbyn:

Lemkin’s views on the Ukrainian tragedy are virtually unknown and hardly

ever ﬁgure in scholarly exchanges on the Ukrainian famine of 1932–1933,

or on genocides in general. Yet his holistic approach to the Soviet regime’s

gradual destruction of the Ukrainian nation is enlightening and makes

a valuable, if belated, addition to the scholarly literature.

Lemkin claimed the issue of genocide was wider than the later-accepted UN

deﬁnition indicates.

In his article “Soviet Genocide in Ukraine”, Lemkin pre-

sented the Ukrainian genocide as the Soviet regime’s intention to destroy the

Ukrainian people on four levels, in four stages:

1 Destroying the national elite, i.e. destroying the brain of the nation to para-

lyze the body. The most serious attacks were organized in 1920, 1926 and

1932–1933, when teachers, writers, artists, thinkers, and political leaders

were executed, imprisoned, or deported. In 1931, 51,713 intellectuals were

sent to Siberia. At least 114 of the most prominent poets, writers and artists,

and cultural leaders suffered the same fate. It is cautiously estimated that at

least 75 percent of Ukrainian intellectuals from Western Ukraine, the Carpa-

thian Mountains, and Bukovina were cruelly exterminated by the Soviets;

32 Lemkin, “Soviet Genocide in Ukraine”, pp. 3–8.

33 Serbyn, Lemkin on the Ukrainian Genocide, pp. 123–124.

34 R. Lemkin, Axis Rule in Occupied Europe: Laws of Occupation –Analysis of Government –

Proposals for Redress. Washington, DC, Carnegie Endowment for International Peace

1944, p. 80.

35 R. Lemkin. Soviet Genocide in the Ukraine; R. Lemkin, “Soviet Genocide in Ukraine”, Jour-

nal of International Criminal Justice, 2009, 7, pp. 125–130; R. Lemkin, Papers; Luciuk,

Holodomor.

36 Lemkin. “Soviet Genocide in Ukraine”, Journal of International Criminal Justice, 2009, 7,

pp. 126–127.

24 Olga Wasiuta

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2 Destroying the national Church, i.e. carrying out a campaign against

churches, priests and the Church hierarchy, and closing the Ukrainian Auto-

cephalous Church –“the soul of Ukraine”. Between 1926 and 1932 the

Ukrainian Autocephalous Orthodox Church was closed, and its metropolitan

bishop and 10,000 priests were eliminated. In 1945, when the Soviets

seized Western Ukraine, the Ukrainian Greek Catholic Church shared the

same fate. The thesis that Russiﬁcation was the only issue is clearly supported

by the fact that the Church, before it was closed, was offered the opportun-

ity to join the Russian patriarch in Moscow, a political tool of the Kremlin;

3 Extermination of a large part of Ukrainian farmers –the guardians of

Ukrainian culture, language and tradition. Ukrainian farmers were sacriﬁced

for establishing a uniﬁed Soviet nation. There were also attempts to justify

the Holodomor simply as a consequence of collectivization and

expropriation;

4 Colonizing Ukraine with alien elements, mixing Ukrainians with other

nations and dispersing the Ukrainian people all over Eastern Europe.

As Lemkin said, at all stages of the Ukrainian genocide the national character of

the operation was important, and he presented the main victims of genocide –

the Ukrainian farmers who starved to death –as the repository of the national

spirit and all those values that made them “a culture and a nation”. Roman

Serbyn indicates that Lemkin’s analysis of the four-staged destruction of the

Ukrainian people is the main contribution to the research on the Ukrainian

genocide.

According to Lemkin, the Soviet Union applied similar measures

against other minorities.

Under the UN Genocide Convention of 9 December 1948, the 1932–1933

Holodomor in Ukraine bears all the characteristics of genocide, which is deﬁned

as acts committed with the intent to destroy, in whole or in part, a national,

ethnical, racial or religious group

At the International Conference on the Holocaust and Genocide in Israel in

1982, a then-unknown researcher of the Ukrainian Research Institute of Har-

vard University, James E. Mace, was the ﬁrst among Western historians who

characterized the Great Famine of 1932–1933 in Ukraine as an act of genocide,

the goal or which was “extermination of the Ukrainian people as a political

factor and social organism”.

Thereafter, in 1983 Americans broke their silence

about the Great Famine and established a special US Congress committee to

37 Lemkin, Papers; Luciuk, Holodomor.

38 Serbyn, “Rafael Lemkin”.

39 S. Mahun, Cruciﬁed Village, www.zn.Kyiv.ua/nn/show/625/55216/[accessed

12.01.2019].

40 A. Cidoruk, “American democracy sometimes ends where the Ukrainian question begins”.

Mirror of the Week, 19 (547), May 21–27, 2005.

The crime of genocide in Ukraine 25

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examine the acts of genocide and reasons why the famine in Ukraine in

1932–1933 was organized by the Soviet government.

Under a special declaration of the US President, 4 November 1984 was ofﬁ-

cially the Day of Commemoration of the Great Famine in Ukraine in

1932–1933.

As regards international acts concerning the Great Famine of 1932–1933, one

of the ﬁrst was the Report of the International Commission of Inquiry on the

Famine of 1932–1933 in Ukraine,

published on 14 February 1988 as an ini-

tiative of the World Congress of Free Ukrainians, made up of leading inter-

national lawyers.

The committee was established as a completely independent nongovernmental

body.

It analysed the time, reasons, geography, number of victims of the

Holodomor, and its consequences. The famine in Ukraine in 1932–1933 was

brought intentionally and indisputably accepted. The Soviet authorities were

fully aware of the famine and its consequences as they intentionally caused the

deaths of millions of people.

The committee came to the conclusion that

Ukraine was undoubtedly cruelly and intentionally starved in 1932–1933, and

that the authorities of the USSR and its allies knew about the shortage of food

among the people. There is no doubt that although Soviet authorities knew

about the dramatic conditions in Ukraine, they refrained from providing aid

until the summer of 1933. The committee concluded also that the Soviet

authorities took various legal steps which deepened the tragic consequences of

the famine, such as preventing people from searching for any food and depriving

them of any possibility to leave the affected regions. It was determined that the

Soviet authorities denied the famine at that time and, in spite of overwhelming

evidence to the contrary, continued denying the famine for over 50 years,

except for Khrushchev’s private evidence.

The committee stressed that the

Soviet authorities deliberately used the famine to implement their new policy of

denationalization.

John Sopinka, the proxy of the World Congress of Free Ukrainians, said in

his speech that in the period of 1932–1933 about 5–10 million Ukrainians were

starved to death as a result of the brutal and excessive elimination of grain by

the Soviet government. Sopinka asked the committee to draw conclusions on

the famine as a planned action and political tool of the state; the famine as an

act of genocide; and whether Stalin, Molotov, Kaganovich, Pavel Postyshev

41 International Commission on the Investigation of Hunger in Ukraine 1932–1933. “Final

Report 1990”. Kyiv 1992.

42 International Commission of Inquiry into the 1932–33 Famine in Ukraine. “The Final

Report”. 1990, p. 1, www.ukrainianworldcongress.org/UserFiles/File/Holodomor-Com

mission.pdf [accessed: 17.01.2019].

43 Ibid.

44 International Commission on the Investigation of Hunger, pp. 53, 56.

45 International Commission of Inquiry, pp. 45–48.

46 International Commission of Inquiry, p. 5.

26 Olga Wasiuta

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(Head of the Organizational-Instruction Department of the Central Commit-

tee), and others were responsible for it.

In 1988 the report of the US Congress committee was published in Washing-

ton. It said that in accordance with international legal standards the Holodomor

in Ukraine of 1932–1933 is recognized as an act of genocide. Moreover, the

committee approved 19 points which condemned the lack of any actions and

the deliberate silence on the part of the then US government, and conﬁrmed

that the famine in Ukraine was a planned action of Moscow targeted at

Ukrainians.

The report was also to disseminate the information about the

famine worldwide in order to give US citizens a better insight into the Soviet

system and present the negative role of the Soviet government in planning the

famine in Ukraine. The Ukrainian diaspora’s activities aimed at paying tribute to

the victims of the Great Famine were supported by the representatives of US

political circles, and as a result paying tribute to victims was transformed into

a political action which won worldwide publicity.

Among other international acts on the Great Famine is the common state-

ment on the 70th anniversary of the 1932–1933 Holodomor in Ukraine,

accepted at the 58th session of the UN General Assembly in 2003 and signed

by 64 states. In this statement the famine is deﬁned as a national tragedy for the

Ukrainian people that claimed from seven to 10 million innocent lives.

1 November 2007, at the 34th session of the UNESCO General Assembly, 193

countries unanimously accepted the Resolution on Commemorating Holodo-

mor Victims on the 75th anniversary of the Great Famine. The resolution

declared that the Great Famine, which was the result of Stalin’s totalitarian pol-

itical regime, should be a warning for present and future generations to preserve

democratic values, human rights, and the rule of law.

In the Soviet Union itself, the Great Famine in the Ukrainian Soviet Socialist

Republic was mentioned for the ﬁrst time by Volodymyr Shcherbytsky,

a member of the Central Committee of the Communist Party of the Soviet

Union, in his speech in December 1987.

It consisted of only a few sentences,

but the impact of the mention gave rise to the beginning of historical research

and the publication of archive materials in Ukraine. Almost immediately, in Jan-

uary 1988, an article appeared in the central journal of Ukrainian historians

(“Український історичний журнал”).

And in 1990 a collection of documents

47 Ibid., p. 2.

48 Ya. Dubinyanska, “The Truth about Three Famine Holodomors”. Mirror of the Week, 44

(419), 16–22 November 2002.

49 Great Famine in Ukraine in 1932–1933, http://holodomorct.org [accessed 15.01.2019].

50 S. Kulchytsky, Holodomor 1932–1933; S. Kulchytsky, Holodomor 1932–1933 in Ukraine as

Genocide, http://history.org.ua/JournALL/pro/14/14.pdf [accessed 01.17.2019];

O. Veselova, “Book on Ukrainian Calvary: The Key to Knowledge and Research”. Mirror of

the Week, 26 (401), July 13–19, 2002.

51 S. Kulchytskyy, “Towards an Assessment of the Situation in Agriculture of the Ukrainian SSR

in 1931–1933”, Ukrainian Historical Journal, 1988, 3, pp. 15–27.

The crime of genocide in Ukraine 27

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was released: Famine of 1932–1933 in Ukraine: Through the Eyes of Historians,

in the Language of Documents.

In March 1993, on the 60th anniversary of the Holodomor genocide of

1932–1933, the president of the then-independent Ukraine, Leonid Kravchuk,

signed a resolution on respect for those people who were starved to death,

establishing mass funerals, erecting crosses, cleaning cemeteries and organizing

prayer and mourning services in tserkovs (a type of an Eastern Orthodox church

in Ukraine) and churches. As a result of this resolution, crosses and monuments

were erected in most Ukrainian cities to commemorate the Holodomor victims.

And in September 1993, at the international conference on the occasion of the

60th anniversary of Holodomor, Kravchuk said that during the artiﬁcial famine

some regions of Ukraine, including the Kyiv Oblast, lost almost one-third of

their population, and every ﬁfth person died of starvation.

In November 1998 Ukrainian President Leonid Kuchma signed a resolution

on establishing a day of commemoration for the Holodomor victims. At the

same time a number of documents were published. These conﬁrmed that the

Holodomor of Ukrainian farmers in 1932–1933 was a deliberately planned

murder of millions of innocent people, mostly children and the elderly.

The 70th anniversary of the 1932–1933 Holodomor in Ukraine was an event

held on a global scale. On 10 November 2003 at the UN assembly on the occa-

sion of the 70th anniversary, the Joint Statement on the Great Famine of

1932–1933 in Ukraine (Holodomor) was announced by 36 states. In that state-

ment, for the ﬁrst time in the history of the UN the Holodomor 1932–1933 in

Ukraine was referred to as a tragedy of the Ukrainian people. Slightly earlier, on

20 October, the US Congress accepted a short resolution which said that the

“Holodomor was planned and implemented by the Soviet regime as a planned

act of terror and mass murder targeted at the Ukrainian people”. However, due

to the Russian position neither the Joint Statement of 36 states nor the US

Congress resolution deﬁned the 1932–1933 Great Famine as genocide.

52 Famine of 1932–1933 in Ukraine: Through the Eyes of Historians, in the Language of Docu-

ments. Compiled by R.Y. Pyrig. Politvydav Ukrainy, Kyiv 1990.

53 “The Holodomor of 1932–1933 in Ukraine: Causes and Consequences”. International Sci-

entiﬁc Conference. Kyiv, September 9–10, 1993. Materials, Kyiv 1995, p. 9.

54 Collectivization and Famine in Ukraine 1928–1933: Collection of Documents and Materials.

Edited by S.V. Kulchyckiy. Naukova Dumka, Kyiv 1992; Famine of 1921–1923 in Ukraine:

Collection of Documents and Materials. Edited by S.V. Kulchyckiy. Naukova Dumka, Kyiv

1993; V. Sergiychuk, How We Were Starved. 3rd ed. Taras Shevchenko National University

of Kyiv, Center for Ukrainian Studies, Kyiv 2006; Black Book of Ukraine. Collection of docu-

ments, archival materials, letters, reports, articles, studies, essays. Compiled by F. Zubanych.

Prosvita Publishing Center, Kyiv 1998; P.P. Yashchuk, Portrait of Darkness. Testimonies,

documents, and materials in 2 books. Book I. MP Kotz, Kyiv and New York 1999;

S. Bilokin, Mass Terror as a Person of Public Administration in the USSR, 1917–1941. Instytut

Istorii Ukrainy NAN Ukrainy, Kyiv 1999; A. Kulish, Genocide,Famine 1932–1933: Causes,

Victims, Criminals. Association of Holodomor Researchers in Ukraine, Kyiv 2001.

28 Olga Wasiuta

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Professor James E. Mace, an author of the special US Congress committee

report of 1988, has unequivocally stated that 16 items of evidence collected

have, in the light of international law, qualiﬁed the Great Famine in Ukraine in

1932–1933 as genocide. The documents published after the fall of the USSR

only added details to the already-outlined procedures employed to carry out the

crime. In analysing the results of the famine in Ukraine, Mace claims that they

can be observed even today and, together with other disasters the Ukrainian

people suffered in the twentieth century, have created a post-genocidal society,

i.e. a society unable to undergo the transformation which is so expected by the

people.

In May 2003 the Ukrainian Parliament called the events of 1932–1933 acts

of genocide against the Ukrainian people, although it should be noted that only

226 deputies out of 450 voted for the statement. The special statement empha-

sised that for the ﬁrst time in history the method of food conﬁscation was

applied by a state as a tool for extermination of its own people to achieve some

political goals. According to the deputies who voted for the statement, the aim

of the extermination in 1932–1933 was to destroy the Ukrainians’national

spirit, the elite and farmers as an element of economic independence of the

country.

On 26 November 2005 for the ﬁrst time the whole of Ukraine took part in

a day of commemoration of the artiﬁcially-provoked famine in 1932–1933 and

the political repressions of Soviet totalitarianism. Various events and mass meet-

ings were organized to commemorate these historical events, and candles were

lit to pay tribute to the millions of innocent victims.

The Holodomors in

1921–1923, 1932–1933 and 1946–1947 were declared to be acts of genocide,

and Ukrainian president Viktor Yushchenko signed Resolution No. 1544 of

4 November 2005 “On respect for Holodomor victims in Ukraine”. Addition-

ally, the president put forward a project for an act to the Parliament in which

the famine of 1932–1933 was qualiﬁed as an act of genocide against the Ukrain-

ian people.

On 16 March 2006, Poland accepted the Resolution of the Senate of the

Republic of Poland on the anniversary of the Great Famine, which said that:

The Senate of the Republic of Poland wishes to remind people about the

Great Famine ‘Holodomor’, which was deliberately provoked by the des-

potic Bolshevik regime in the Soviet Union and was planned and realized

to weaken and destroy the Ukrainian people and at the same time strangle

55 “Was the 1933 Holodomor a genocide?”www.golodomor.org.ua/pub.php?sp [accessed

15.01.2019].

56 E. Rybałt, Wielki Głód i śmierćziemi w Ukrainie w latach 1932–33,“Great Famine and death

in Ukraine, Conference report, Vicenza, Italy”. Kultura i Historia, 5, 2003.

57 Odzyskiwanie pamięci Wielkiego Głodu, “Getting the Great Famine memory back”, http://

norymberga.blox.pl/html/1310721,262146,169.html?4 [accessed: 11.01.2019].

The crime of genocide in Ukraine 29

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their desire for independence and to rebuild their own independent country

(…) The Senate of the Republic of Poland shares the Ukrainian point of

view that the Great Famine of 1932–1933 should be recognized as an act

of genocide as well as to list the people responsible for this crime. The

states that at that time bought food from the Soviet Union, and journalists,

politicians and intellectuals who visited Ukraine and did not notice the

genocidal activities and even proclaimed that these kinds of accusations

were groundless, are also responsible for that crime. …Some journalists

received some prestigious international awards for propagating this lie. This

dismal chapter of cynicism and servility should be carefully examined and

the described awards nulliﬁed.

In August 2006 the Security Service of Ukraine published on the Internet 5,000

pages of documents of the Soviet GPU which had been available only for

historians

. According to published NKVD documents, the Great Famine was

a planned policy of the Soviet authorities against Ukrainian desires for independ-

ence and against the “class enemy”, as the communist regime regarded the farm-

ers/owners of ﬁelds who fought against compulsory collective farming. The

director of the Security Service of Ukraine, Ihor Driżczanyj, said that diminishing

the scale of the Holodomor in Ukraine not only makes no sense, but is also dishon-

est and unjust from the historical point of view. The documents were collected over

several years, and earlier they were kept by the KGB (Committee for State Security)

and classiﬁed as “top secret”, hidden from society in special warehouses.

On 28 November 2006 the Verkhovna Rada (Supreme Council) of Ukraine

voted, as requested by President Yushchenko, for the act of law recognizing the

Great Famine in 1932–1933 as an act of genocide.

On 29 November 2006

the president signed the act recognizing the Holodomor in 1932–1933 as

a genocide against the Ukrainian people.

Yushchenko thanked all countries

58 “Resolution of the Senate of the Republic of Poland of 16 March 2006 regarding the anniver-

sary of the Great Famine in Ukraine”/Uchwała Senatu Rzeczypospolitej Polskiej z dnia 16

marca 2006 r. w sprawie rocznicy Wielkiego Głodu w Ukrainie, www.senat.gov.pl/k6/dok/

uch/007/090uch.htm [accessed:12.01.2019].

59 http://www.sbu.gov.ua/sbu/control/uk/publish/article?art_id=49757&cat_id=53076

[accessed: 14.01.2019]; “The Verkhovna Rada recognized the Holodomor as genocide”,

www.unian.net/eng/news/news-174851.html [Accessed 14.01.2019].

60 “The Security Service of Ukraine collected 5000 documents on The Great Famine kept by

KGB USSR (Committee for State Security”, www.unian.net/ukr/news/news-174361.html

[accessed: 14.01.2019].

61 “The Supreme Council of Ukraine accepted the Great Famine as a genocide”/Верховна Рада

визнала Голодомор геноцидом, www.unian.net/ukr/news/news-174851.html [accessed:

14.01.2019]; J. Junko. Ukraina- Parlament uznałWielki Głód za ludobójstwo. www.dzien

nik.pap.pl/index [accessed: 14.01.2019].

62 “The president signed the act recognizing the Holodomor as a genocide against the Ukrain-

ian people”, www.unian.net/ukr/news/news-174944.html [accessed: 14.01.2019].

30 Olga Wasiuta

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which recognized the Great Famine as a crime, adding that: “I believe that the

United Nations will do the same on the 75th anniversary.”

Conclusions

Following the Great Famine, practically the whole of Western Ukraine was

inhabited by settlers from the Soviet Union, for whom the language of commu-

nication was Russian, and –over the course of time –their only identity became

the Soviet identity. The cities of Eastern Ukraine had been previously Russiﬁed.

Today, the post-Soviet populations of Eastern Ukraine, the Black Sea, and Taur-

ida –not to mention Crimea, annexed by the Kremlin –are strongholds of pro-

Russian parties in Ukraine. The Russians shamelessly use these territories as

a tool to put pressure on Kyiv to come back to the sphere of Russian inﬂuence.

These particular regions are not interested in the main steps taken to create

genuine Ukrainian governance. According to the local and Russian press,

a major part of the population promotes completely different ideas: Slavic

Brotherhood, the True Orthodox Church, Great Russia, ﬁghting against Ameri-

can imperialism, and the followers of Stepan Bandera, a hero of Ukraine for

defending national ideas and battling for an independent Ukrainian state, who

came to power in Kyiv. These ideas are accompanied by a quite interesting set

of historical symbols: the cap of Monomakh (the Grand Prince of Rus in the

eleventh century) is placed next to the red ﬂag, an eagle with two heads and the

ﬁve-sided star and the icon of the Emperor of Russia, Nicholas Romanov –to

ﬁnish with the portrait of the Bolshevik leader Stalin. What is interesting is that

a citizen is expected to believe that this mosaic is just and accept it without any

criticism towards the symbols, which belong to the past. A similar situation

occurs in Russia, where at Red Square there are the White Emperor (the Tsar)

and the Red Emperor’s murderer, representatives of the White and Red Army,

Nicholas in the icons, and mummiﬁed Lenin, and people pay tribute to the

remains of General Denikin, against whom Lenin called on them to ﬁght.

The Great Famine is one of the main symbols which should connect the his-

torical awareness of all the Ukrainian people. This happens when every Ukrain-

ian family commemorates the famine: about 80 percent of Ukrainians consider

the Great Famine in 1932–1933 an act of genocide against the Ukrainian

people. Almost half of respondents point to Joseph Stalin as personally respon-

sible for organizing the Great Famine. One-third of respondents point to the

USSR law enforcement authorities, such as the NKVD, and every fourth

respondent to the highest management of the Ukrainian SSR.

63 Ibid.

64 O. Wasiuta, “Is the crime of genocide in Ukraine in 1932 a myth?”/Czy zbrodnia ludobójstwa

w Ukrainie w latach 1932–1933 to mit? “Forum Politologiczne”, Odmiany dyskursu politycz-

nego, 2007, nr 6, s.29–30.

The crime of genocide in Ukraine 31

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The Soviet regime has consistently denied the famine in Ukraine. For over half

a century the whole world was silent about this horriﬁc crime, as none of the

inﬂuential states were willing to put themselves in conﬂict with a superpower. The

issue of the Holodomor was considered closed, and any attempt to raise it was

considered to be an attempt to destroy the Soviet authority. In addition,

researchers were repressed in a variety of ways. In the USSR everyone knew about

the Great Famine, but nobody talked about it. Any mention of the famine in mass

media was treated as anti-Soviet propaganda. At the time the Great Famine was

carried out, none of the countries offered help to the dying, and there was no

humanitarian aid. The scale and the degree of cruelty exceeded anything man had

invented and implemented to that date. The number of victims is estimated by

researchers in approximate terms because all statistics and the truth were hidden

and falsiﬁed by the Stalin regime. Because of this silence and the ban by the

USSR (e.g. the Ukrainian Communist Party still denies the Holodomor), the

truth about the Great Famine began to reach European public opinion only after

the fall of the USSR. Previously any mention of it in the USSR was punished as

commission of the crime of spreading “anti-Soviet propaganda”.

Moreover, even after Stalin’s death there remained a deeply rooted fear in the

society: everyone knew what they could talk about and what they should not even

mention. Under Article 62 of the Criminal Code of the Soviet Ukraine (anti-Soviet

campaigning and propaganda), people could be sent to prison or committed to

a psychiatric hospital for doing so. The totalitarian system even tried to erase this

tragedy from the memory of the Ukrainian people. Only thanks to the Ukrainian

diaspora and researchers was it eventually revealed. Until then the truth was con-

cealed by ‘experts’–historians who diminished the effects of the Great Famine.

The research into the causes and results of the Great Famine in Ukraine in

1932–1933, which was one of the most tragic events of the twentieth century,

has jolted the Ukrainian public conscience for years. As Stalin grew in power at

the top of Kremlin, he ruled the USSR implementing his repressive policies.

This policy was marked by a return to the mass terror and methods of “war

communism”tried and tested by the communists ten years earlier. However, in

Ukraine the famine was the most powerful method of repression (although one

of many), and a special social tool for subjugating farmers who were ruthlessly

exploited by the totalitarian regime.

Around 15 volumes of works on the genocide against the Ukrainian people in

1932–1933 have been published. The authors of these works express their

objective scientiﬁc opinions. Canadian researcher Marco Carynnyk published

over 10,000 books and articles at the beginning of the 1990s.

The books by

65 “How many Ukrainians claim the Great Famine is a genocide and how this opinion has been

changing in a course of time”/Ilu Ukraińców uznało Wielki Głód za ludobójstwo i jak

z biegiem lat zmieniałasięta tendencja, https://wschodnik.pl/spoleczenstwo/item/19149-

ilu-ukraincow-uznalo-wielki-glod-za-ludobojstwo-i-jak-z-biegiem-lat-zmieniala-sie-ta-ten

dencja.html [accessed 15.01.2019].

32 Olga Wasiuta

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Larysa Burian and Inna Rikun in 2014 include over 12,000 papers.

All these

works were an attempt to determine whether there was or was not (as claimed)

a famine in Ukraine, and to recognize the Holodomor genocide as the Ukrain-

ian tragedy of the twentieth century. Certainly, there were other stimuli and

motives for such huge intellectual energy of many generations of historians,

writers, artists and social activists in Ukraine and abroad. The truth about the

famine was always alive, and remains so among the Ukrainian people. This is

a historical fact, which after the political and legal analyses in 2006 gained the

status of legal acts.

Even today –87 years after the famine –the mortality rate in Ukraine is

higher in the regions which were affected, and the birth rate is higher in the

regions which were not.

Fighting the trauma from the past is not just a question of security, but of

the existence of the Ukrainian people. Trauma inﬂuences values, and the value

of surviving in these regions won over values of self-actualization. This is the

key trauma, which much like gravity inﬂuences the Ukrainian people from that

time.

The total losses in Ukraine in the twentieth century from wars, revolutions,

repressions, and famine are estimated by researchers at 15–16 million.

The year 1933 marks the bitter anniversary of the year in which the greatest

number of people died in the whole history of Ukraine.

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3 Kingpins of contention

Local-level dynamics of mobilization

in the Rwandan genocide

Hanna Schieve

Introduction

Genocide: the crime of all crimes; a “problem from hell.”

Enter Jean-Baptiste:

civil servant, Rwandan villager, Hutu, perpetrator of genocide (Hatzfeld, 2005:

chapter 3). An ordinary man who participated in an extraordinary offense. The vul-

garity and sheer unimaginable barbarity of the Rwandan genocide—wrought with

images of machetes tainted red and rivers teeming with corpses—entices we obser-

vers from afar to ask why? In turn, we are spoon-fed half-tales of ancient hate, of

leaders gone mad, and of individuals born evil. Conﬂict studies at large is suscep-

tible to sensationalizing the very events it seeks to delineate, particularly when it

comes to genocide, in all their infamy. Yet, atrocious as genocide is, genocide is

political violence all the same. If we focus our lens a little closer and start asking

Jean-Baptiste how he came to murder his Tutsi neighbors, instead of why, we will

start to see that what we once saw as a cataclysmic event of gargantuan proportion

is but one episode among many, with recognizable and predictable patterns. In

this study, the lens will focus in just enough—to the local level—to observe what

happens in communities. In asking how communities collectively mobilized to

commit political violence in Rwanda in 1994, I will examine genocide through

a more pragmatic lens and garner insights on social mobilization processes and

explanations of the temporal variation of its onset along the way.

Jean-Baptiste’s account of the days following April 6, 1994 mirror the dynamics

seen throughout many communes in rural Rwanda. “In Rwandan communes,

a burgomaster is akin to a local mayor. The role is the most powerful position of

authority in the commune and is charged with controlling the state’s security

apparatus in the community”(Straus, 2006: 68). History matters, context matters,

and community-speciﬁc nuances matter, but the burgomasters’role as kingpins of

contention is undeniable in explaining the variation in timing of the onset of geno-

cide across communes. This study operationalizes a framework derived from the

social movement literature to demonstrate the instrumental role local authority ﬁg-

ures played in activating mechanisms of collective mobilization in a transgressive

1 In reference to Nicole Rafter’sThe Crime of All Crimes: Toward a Criminology of Genocide

(2016) and Samantha Power’sA Problem from Hell: America and the Age of Genocide (2007).

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episode of contention. I begin by deﬁning key terms pertinent to the analysis.

Next, I highlight some of the key literature from the ﬁeld of genocide, mobiliza-

tion, and social movement studies. I then explain the theoretical framework and

associated mechanisms employed throughout the study, followed by a description

of my methodology and justiﬁcation of my case selection, as well as a deﬁnition of

the scope conditions of the micro-comparative case analysis. Following that,

I move on to the study itself, which analyzes two communes separately before dis-

cussing their commonalities, differences, and the signiﬁcance of each. Finally,

I address alternative explanations before concluding with a discussion of policy

implications and avenues for further research.

Deﬁnitions

Genocide

Article II of the United Nations Convention on the Prevention and Punishment

of the Crime of Genocide deﬁnes genocide as such: “acts committed with intent

to destroy, in whole or in part, a national, ethnical, racial, or religious group, as

such”(1948). The intentional vagueness in the ofﬁcial deﬁnition has at times

hindered its utility. Almost all cases of genocide are contested and the implica-

tions associated with labeling a conﬂict as genocide are often riddled with polit-

ics. The case of Rwanda, though, is indisputably accepted as genocide

throughout the academic, public, and political spheres. Therefore, I use the

word “genocide”to describe the episode rather than use alternative monikers

such as “ethnic cleansing,”“mass killing,”“crimes against humanity,”or any

other labels commonly used in its stead.

Onset

In this study I refer to the “onset”of genocide as deﬁned by Scott Straus: “public

and generalized attacks against Tutsi”(Straus, 2006: 12). While private, speciﬁc

acts of violence were sometimes committed in the communes I analyze, I will not

mark those acts as points of onset. Related to this, there are many ways in which

civilians participated in the genocide. Lee Ann Fujii created a spectrum of

responses to illustrate the range of acts that participants committed throughout

the course of the genocide, ranging from “rescuing,”“resisting,”“witnessing,”

“evading,”“pillaging,”and “denouncing,”to “killing”(2009: 30). For the pur-

poses of this study I accept that there is variation at the individual level in methods

of participation, but as my analysis is concerned with community-based action,

mobilization will broadly refer to active, collective support for the genocide.

Meso-level

According to Evgeny Finkel and Scott Straus, the meso-level refers to “the space

between national—or international—level factors and individual-level ones”

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(2012: 58). In this analysis, I refer to the meso-level synonymously with the

local or community level. Units of evaluation include political parties, civil soci-

ety, social or patronage networks, economic organizations, local military units,

etc. (58–59). Despite being the least-researched branch of genocide studies,

analysis at this level is well-suited to provide valuable insight regarding variation

in the dynamics of violence through cross-case comparisons (56). This study in

particular will demonstrate how local-level actors play an instrumental role in

explaining variation in the onset of genocide.

Explanations of genocide

From the convention that named the crime in the wake of the Holocaust up

until the 1990s, scholars of genocide have provided primarily macro-level theor-

etical and historical explanations of ethno-national sentiments run tragically

amok. Public understanding traditionally followed the sensationalist accounts

from journalists of brute tribalism beyond Western comprehension, and scholars

were primarily historians who focused on explaining particular cases of genocide

rather than searching for broader explanations (Valentino, 2014: 90). For

example, Leo Kuper posited that genocides occurred in divided or plural soci-

eties with deep ethnic cleavages (1982: 57). Other scholars, particularly R.J.

Rummel, contended that authoritative regimes where power was concentrated

in the hands of a few powerful individuals were more likely to commit genocide

(1995). The characterization of genocide as a purely modern phenomenon was

popularized by Zygmunt Bauman, who pointed to the degree of bureaucratic,

technological, and logistical capacities necessary to carry out the destruction of

a group (1989). Alternatively, Eric Weitz described that the crime was ideo-

logical in nature and the result of leaders’desire to transform society into “uto-

pias”(2005). Barry Posen offers an additional explanation in his “Ethnic

Security Dilemma.”In his theory, ethnic groups overestimate the security threat

posed by the other and thereby take action and unnecessarily, albeit rational in

intent, instigate and escalate ethnic conﬂict (1993). These macro-historical the-

ories provide frameworks for understanding why genocide occurs, but they fall

short of explaining how.

The Rwandan genocide of 1994, while publicly interpreted as a product of the

ancient hatred model, in conjunction with the genocide in the Balkans around the

same time, sparked new efforts by scholars seeking to debunk the explanations of

old and provide more robust, less superﬁcial insights into what drives such violence

(Straus, 2006: 40, Valentino, 2014: 93). As Charles King points out, there has

been a recent turn in social violence research toward micropolitics (2004: 32). To

expand on the gaps in understanding of causal mechanisms at a micro-level, socio-

psychological research has been used to explain participation in the Rwandan

genocide. For example, Christopher R. Browning’s analysis of Police Battalion

101 during the Holocaust highlights the role of group pressure and conformity

(1998). Experiments like the Stanford Prison Experiment and research conducted

by Stanley Milgram illustrate how obedience to authority leads perpetrators to

40 Hanna Schieve

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partake in violence, which Prunier argues was a prevalent factor in Rwandese soci-

ety (Milgram, 1963; Prunier, 1998: 245; Zimbardo, 2007). Additionally, research

has found that social networks are important factors in explaining the mobilization

of participants in the Rwandan genocide on an individual level (Fujii, 2009;

McDoom, 2011a). Such socio-psychological models are useful in explaining geno-

cide at the micro, individual level; just as macro-political and structural models are

helpful in describing genocide at the national level. However, to date, research on

the dynamics of the genocide at the meso-level remains underdeveloped (Finkel &

Straus, 2012: 58–59). Conﬂict scholars such as Stathis Kalyvas argue that local

dynamics of political violence operate distinctively from the national level, and

therefore increased consideration should be given to understanding meso-level

processes (2003). Scott Straus’s empirical ﬁnding that genocidal violence did not

radiate from the capital of Kigali supports Kalyvas’supposition that the periphery

ought not be assumed to mimic dynamics at the center (2003; Straus, 2006: 60).

Further development within this level of research will generate insight into the

variations of the dynamics of violence (Finkel & Straus, 2012: 59). This study in

particular offers an explanatory model of timing variation across an episode of

genocide.

Given the massive civilian participation level inherent to the conﬂict, the

Rwandan genocide also generated a scholarly interest in understanding processes

of civilian mobilization in episodes of mass political violence. At the same time,

scholars from the ﬁeld of research on social movements transitioned from think-

ing of episodes of collective action as the result of rational, rather than irrational,

politics. As such, theories were developed to answer not why episodes happen,

but how. Doug McAdam, Sidney Tarrow, and Charles Tilly developed a uniﬁed

framework to theorize processes of social mobilization (McAdam et al., 2001).

Several scholars of conﬂict studies have called attention to the potential beneﬁt

of considering these ideas in episodes of political violence. For example, Elisa-

beth Wood contends that mobilization patterns in conﬂict can beneﬁt from les-

sons presented by scholars of social movements and collective action (Della

Porta & Diani, 2015: 457). Like war, genocide is best understood as a process

(Shaw, 2003). I contend that the process-centric models from the social move-

ment literature could help genocide researchers, who are also increasingly con-

cerned with understanding the how side of the conﬂict. Drawing on these

existing theories of genocide and social mobilization, and the demand for fur-

ther research in the area, this study utilizes a framework from contentious polit-

ics to identify mobilizing mechanisms at the meso-level of the Rwandan

genocide to explain cross-commune variations in timing of the onset.

Theoretical framework

Contentious politics

Social movement theory lends a useful framework for explaining processes of

collective violence at the local level. The Rwandan genocide was remarkable in

Kingpins of contention 41

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that an estimated 14–17 percent of adult male Hutu civilians were collectively

mobilized to participate in the violence (Straus, 2006: 118). Indisputably, the

genocide was a wildly successful social movement. Therefore, it follows that the

collective action in this context can be analyzed by borrowing from social move-

ment theory. In discussing the escalation of violence in civil wars, Elisabeth

Wood contends that given their shared concern with understanding the dynam-

ics of social mobilization scholars of civil wars ought not to work in isolation

from scholars of social movements (Wood, 2015: 457). The same can be said

for scholars of genocide.

As the literature on genocide continues to search for theories of mobilization

and participation processes, I posit that the collective action frameworks offer

a useful lens through which to conduct analysis. McAdam, Tarrow, and Tilly

put forward a uniﬁed framework of contentious politics that I will employ in my

micro-comparative case study of the Rwandan genocide. Contentious politics is

deﬁned by McAdam et al. as:

episodic, public, collective interaction among makers of claims and their

objects when a.) At least one government is a claimant, and object of

claims, or a party to the claims and b.) The claims would, if realized, affect

the interests of at least one of the claimants

(2001: 5)

This chapter draws on insights from collective action theorists’attempts to

describe the mobilization of communities into transgressive collective action. By

transgressive action, McAdam et al. add additional criteria to their deﬁnition as

follows: “c.) At least some parties to the conﬂict are newly self-identiﬁed polit-

ical actors or d.) At least some parties employ innovative collective action”(8).

Episodes are deﬁned by McAdam et al. as “continuous streams of contention

including collective claims making that bears on other parties’interests”(28).

Using this framework, I trace the dynamics of the contentious episode—com-

munity-level mobilization into genocidal violence in the Rwandan genocide—

and explain how meso-level mobilization mechanisms of competition for power,

framing, and diffusion operated at the commune level.

This framework allows for the identiﬁcation of recurrent sequences of causal

mechanisms in episodes of contention, thus providing an explanation of the vari-

ations in outcomes within and across cases. Mobilization processes concatenate

mechanisms, starting with environmental factors and passing through framing

and diffusion mechanisms (McAdam et al., 2001: 28). McAdam et al.’s frame-

work places such mechanisms in a dynamic mobilization model, where mechan-

isms continuously interact (45). In this study, I identify three causal mechanisms

most relevant to community mobilization in the Rwandan genocide: competi-

tion for power, framing, and diffusion. While these mechanisms concatenated in

predictable ways in each commune, variation in the initial political afﬁliation of

the burgomaster accounted for a protracted period of mobilization prior to the

onset of genocide in Taba. I will ﬁrst summarize the theory behind these

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mechanisms before identifying the environmental factors pertinent to the micro-

comparative case study.

Mechanisms

Competition for power

McAdam et al.’s framework for contentious politics contends that “nearly all

protracted episodes of contention produce a mechanism of competition for

power”(2001: 67). Filip Reyntjens contends that struggles over power are con-

ducive to genocide (1996: 242). The competition mechanism operates when

environmental factors create a “space of opportunity”(Straus, 2006: 88). Struc-

tural changes, as argued by Charles Tilly, create windows in which elites may

jockey for power and consolidate their power through the elimination of compe-

tition (Krain, 1997: 335). According to Tarrow, such factors could include:

“the opening up of the access to participation, shifts in ruling alignments, the

availability of inﬂuential allies, and cleavages within and among elites”

(1994: 86).

Framing

Analyses of framing processes in collective action have proliferated in studies of

social movements and have come to be understood as one of the central dynam-

ics in the literature (Benford & Snow, 2000: 612). Robert D. Benford and

David A. Snow deﬁne collective action frames as such: “action-oriented sets of

beliefs and meanings that inspire and legitimate the activities and campaigns of

a social movement organization”(614). Framing can take various forms, includ-

ing: adversarial framing, which involves drawing the distinction between “good”

and “evil”; prognostic framing, which presents the frame as a solution to

a problem; and motivational framing, which inspires mobilization and action

(616–617). Other framing theories relevant to this study includes the creation

of “us–them boundaries,”where intergroup distinctions are drawn and acted

upon, as well as the implementation of “crisis frames,”which manipulate the

pervasive insecurities of wartime environments (Hunt et al., 1994: 192).

Through written and spoken acts, the frames are then disseminated through dis-

cursive processes (Benford & Snow, 2000: 623). This micro-comparative study

will show how the Hutu hardliners appropriated existing differences between

Hutu and Tutsi into collective action frames conducive to genocidal mobiliza-

tion. In the sequence of collective mobilization mechanisms, what follows next

is diffusion.

Diffusion

Diffusion includes, but is not limited to, the dissemination of the collective

action frames described above. As deﬁned by McAdam et al., diffusion is “any

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transfer of information across existing lines of communication”(2001: 69).

According to Sarah A. Soule, the mechanism can occur through “a transmitter,

an adopter, an innovation that is being diffused, and a channel along which the

item may be diffused”(2007: 29). Examples of diffusion include the broadcast-

ing of propaganda through media or the diffusion of the threat of coercion to

nonparticipants in the episode (Luft, 2015b: 159–160). Diffusion can also oper-

ate through social networks and patronage or kinship ties (Diani & McAdam,

2003). In this case study I illustrate that within the repertoires of diffusion, the

burgomaster played the role of transmitter in the processes of mobilization

toward genocide at the commune level.

Situating the episode

Before zooming in on the local-level dynamics and mobilization processes of the

Rwandan genocide, some context-speciﬁc theory must be deﬁned. Macro-

theories of genocide, as well as studies of conﬂict in general, hypothesize on the

signiﬁcance of state capacity, wartime environments, ethnicity, democratic

reform, “triggering”events, and their relationship to political violence and the

collective action mechanisms described above. The explanatory variables and the

theories surrounding their relationship to genocide addressed in this section are

all important to any analysis of the Rwandan case. Taken on their own, how-

ever, they cannot fully explain why the transgressive episode occurred. My

micro-comparative case analysis does not seek to prove or disprove the signiﬁ-

cance of any of these national-level variables, but because the communes and

sequence of events examined herein were inﬂuenced by the environmental

national context, it is therefore necessary to identify and address them before

proceeding to a meso-level analysis.

State administration

First, in the historical theories developed to analyze the Rwandan genocide,

scholars have pointed to the precolonial and colonial legacy of Rwanda’s strong

state institutions as a key factor in sustaining a “socially conformist”population

capable of mobilizing into genocidal violence (Reyntjens, 1996: 242–243). This

contention hinges on the theories regarding state strength and its relationship

to genocide. Indeed, the Rwandan state is remarkably efﬁcient and pervasive

throughout society. This sets it apart from most other African nations. In fact,

Rwanda is unique in several ways that contribute to its state strength. For one,

it is the most densely populated country on the continent (McDoom, 2014:

25). Thus it does not suffer from the governance challenges caused by the

center-–periphery divide observed by Jeff Herbst in most other African states

(2000: 20–21). Second, Rwanda’s geography is dotted by thousands of rolling

hills and (over)cultivated ﬁelds, with little uninhabited territory, rendering the

land relatively easily surveilled and traversed (Straus, 2006: 215). In addition,

well-developed Rwandan institutions date back to the precolonial era and have

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existed ever since with a degree of continuity uncommon for contemporary Afri-

can states. In this sense, Rwanda as a nation did not suffer from arbitrariness

and its creation was uncharacteristically neither new nor foreign (Straus, 2006:

207). As such, the ﬁve levels of state administration

that operated in the coun-

try prior to the genocide were meaningful to a high degree (203). While state

power is not sufﬁcient in explaining genocide, it does help to illuminate dynam-

ics at the local level (McDoom, 2014: 23). For example, as the following case

study will demonstrate, the salience of the Rwandan state—whereby the

burgomaster

identiﬁed with the national order—was indeed critical to the oper-

ation of mobilizing mechanisms at the local level.

Ethnicity

It would be impossible to conduct an analysis of the Rwandan genocide without

discussing ethnicity. After all, the violence was primarily interethnic. Kanchan

Chandra deﬁnes ethnic identities as “a subset of identity categories in which eli-

gibility for membership is determined by attributes associated with, or believed

to be associated with, descent”(2006: 398). However, the very concept of eth-

nicity is notoriously contested, with academics divided between primordialist,

instrumentalist, and constructionist views (Oberschall, 2000: 982–983). Juan

J. Linz and Alfred Stepan, speaking as constructionists, highlight the dynamic

nature of ethnic identity, which varies in meaning across time and space and is

amenable to change in response to political inﬂuences (1996: 366). The debates

surrounding ethnicity in conﬂict hinge on how ethnicity is deﬁned and on what

it is based. This analysis will not seek to provide an explanation for these ques-

tions, but instead will illustrate how constructions of ethnicity are appropriated

during collective mobilization.

During the Rwandan genocide, the Hutu majority (consisting of

14–17 percent of the total population) attempted, and to a large degree suc-

ceeded, to eliminate the Tutsi based on their ethnic membership (Straus, 2006:

118). However, there are deep ﬂaws in the literature on ethnic violence, espe-

cially as it is applied to the Rwandan genocide. James D. Fearon and David

D. Laitin are right to point out that the accounts based on “ancient hatred”

suffer from gross over-prediction. Ethnic differences and even tensions are pre-

sent in societies throughout most of the world, yet genocide remains a rare

event (Fearon & Laitin, 1996: 715). Also, Rwanda has never even had tribes

(Straus, 2006: 40). Furthermore, Tutsis were not the only targets: Hutu moder-

ates were among the ﬁrst groups to be eliminated, and non-participant Hutus

2 For the purposes of this study, I refer to the three highest levels of the bureaucratic hierarchy:

the national government, prefectures, and communes (Straus, 2006: 204).

3 The burgomaster can be equated with the role of a mayor. The role is the most powerful pos-

ition of authority in the commune and is charged with controlling the state’s security apparatus

in the community (Straus, 2006: 68).

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were deemed “accomplices”and targeted for murder (Straus, 2006: 49). To

that end, there is little evidence to assert that the tensions between Hutus and

Tutsis were even particularly severe (Valentino, 2014: 93). The categorical dis-

tinction between the Hutu and Tutsi ethnic groups existed before colonial occu-

pation, though the distinctions between the two grew more salient during such

occupation. Before, the differences were generally related more to occupation or

social hierarchy, or even region, rather than to steadfast physiological features

(Clapham, 1998: 197). The meaning of the terms “Hutu”and “Tutsi”was not

static, but instead varied across time and space in Rwanda (Fujii, 2009: 60).

However, awareness of the categories was widespread and salient. By the time of

the genocide, Rwandan identiﬁcation cards listed an individual’s ethnicity

(Straus, 2006: 234).

If there was not always a consensus about what the differences between the

Hutus and Tutsis were, it was at least understood that the difference existed

(Fujii, 2009: 121). It is important to point out that much of the racial propa-

ganda and appropriation of ethnic identities that the Hutus spread in their

genocidal campaign equated all Tutsis with the inkotanyi.

The hardliners expli-

citly linked all Tutsis with the Rwandan Patriotic Front (RPF). They were

labeled as either “enemies”or at least “accomplices”of the rebel group (Straus,

2006: 25). Historically speaking, precolonial and colonial control of Rwanda

was placed in the hands of the Tutsi minority. Hutus later took power in the

independence period, yet the omnipresent threat of a Tutsi reprisal became an

important part of Hutu myth-building (McDoom, 2005: 18). By linking an

ethnic category with a rebel group which did pose a legitimate threat to the

majority Hutu parties’control over power, the hardliners succeeded in appropri-

ating existing ethnic categories in a genocidal construct. Given this, as Charles

King aptly notes, if ethnicity is but a tool of mobilization, then ethnic conﬂict

itself may well be a misnomer (2004: 451). This study will show how this

occurred during the mobilization process.

Introduction of multipartyism

While I contend that the violence was primarily interethnic, it is necessary to

acknowledge the role that intra-Hutu politics played in instigating the genocide.

As Benjamin Valentino points out, intra-ethnic violence, usually committed by

extremists against moderates, is commonplace in ethnic conﬂict (Valentino,

2014: 94). Post-independence Rwandan politics pitted Hutus in conﬂict with

one another based on longstanding regional rivalries (Fujii, 2009: 10). There is

ample scholarship to suggest that the political inﬁghting and maneuvering ram-

pant in the wake of the introduction of multipartyism in Rwanda played

a signiﬁcant role in the run-up to the genocide. Fujii contends that the historical

narrative reveals not a culture of ethnic hatreds, but rather a sometimes-violent

4Inkotanyi became synonymous with the RPF rebels, or “enemies”(Straus, 2006, p. 172).

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process of state-building and competition for power (73). Michael Mann’sThe

Dark Side of Democracy describes how states in the midst of democratic transi-

tion are susceptible to genocidal violence as the ethnos (ethnic group) becomes

conﬂated with the demos (democracy), and the majority ethnic group justiﬁes

its targeting of the minority as justiﬁed by majoritarian, democratic rule (1999).

The argument suffers from frequency mismatch, but parallels could well be

drawn from Mann’s theory to the political instability experienced by Rwanda in

its attempt to reform away from authoritarian rule.

The introduction of multi-party politics in 1991 in Rwanda legitimized and

emboldened parties that were previously dormant (McDoom, 2014: 42). The

resounding signiﬁcance of intra-Hutu political rivalries leading up to and during

the 1994 genocide takes credence away from the explanatory models that

emphasize ethnic fear and ancient tribal hatreds. The shift to multi-party politics

exposed that the major cleavages in Rwandan society were not inherently ethnic,

but rather had important political and regional characteristics, with President

Juvenal Habyarimana’s northern Hutu faction pitted against the Republican

Democratic Movement (MDR) and MDR-Power Hutus

of the center-south

(Fujii, 2009: 56). Therefore, the Rwandan genocide was not an example of Afri-

can tribalism and ancient ethnic hatreds run amok. Instead, as is illustrated in

my analysis below, it was an example of contentious politics gone transgressive.

War and genocide

The relationship between war and genocide is often emphasized in the con-

ﬂict studies literature. One can safely say that war does not cause genocide,

because if it were the case there would be many more genocides. Genocide

is (thankfully) a rare event—much more so than war. However, war can act

as a proximate factor to genocidal violence in several important ways. In

a psychological sense, war serves to desensitize the population to violence

and mass death (Bartrop, 2002: 520). War can also create an environment

of mass hysteria (Fettweis, 2003: 228). From a rational-actor perspective,

the prevalence of violence already present in war makes it easier for leaders

to take extraordinary measures. In a sense, war acts as a stepping stone to

acts that would otherwise require a great leap. Genocide becomes entangled

in the strategy of war, far from operating in distinction from it (Valentino,

2014: 95). As Valentino and his colleagues conclude, sometimes mass kill-

ing is simply war by other means (Valentino et al., 2004: 401–402).

Indeed, Barabra Harff’s quantitative study found that all episodes of geno-

cide in recent history occurred in the context of a war (2003: 70). How-

ever, due to deﬁnitional inconsistencies, this ﬁnding can be disputed. For

5 After the assassination of Burundi president Melchior Ndadaye in 1993, opposition parties

split into “Power”factions, which expounded extremist Hutu ideology and agendas (Fujii,

2009: 53).

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example, Bartrop points out that the Ukrainian famine, which he asserts

constituted genocide, occurred during peacetime (2002: 527). As regards

social movements, McAdam et al. state that episodes of contention develop

from environmental uncertainty (2001: 97). War by all measures contributes

to a great environmental uncertainty. Rwanda’s genocide was no exception.

Since 1990, Rwanda had been enveloped in a civil war between the RPF and

the ruling government led by President Habyarimana. The national army was

expanded during this time of civil war, and a youth militia known as the Interaham

we was created (Straus, 2006: 26). These factors, made possible by the war, would

later aid the genocide efforts. The war continued until peace was negotiated in the

form of the Arusha Accords in the Fall of 1993 (24). The peace lasted until the

assassination of President Habyarimana, which led to a resumption of the civil war

and later genocide. Hypotheses supporting the causal relationship between the

civil war and genocide are supported by Scott Straus’s bivariate regression analysis,

which found a statistically signiﬁcant relationship between the date of onset within

a prefecture and proximity to the RPF (the front) (62). Martin Shaw, too, postu-

lates the connection between Rwanda’s civil war and its genocide, stating that the

episode was political and militaristic, not tribal (2003: 211).

Environmental trigger: assassination

President Habyarimana was assassinated just outside the capital, Kigali, on

April 6, 1994, when two missiles shot down the plane carrying him, several of

his key advisors, and the Burundian president (Straus, 2006: 44). The signiﬁ-

cance of this event cannot be understated. While the genocide might well have

taken place without the assassination, the intense crisis and period of acute inse-

curity that followed the assassination had an undeniable, direct inﬂuence on the

contentious episode that followed. Who was responsible for the assassination

remains unknown to this day. The most likely suspects were the hardliners

within Habyarimana’s National Republican Movement for Democracy and

Development (MRND), who viewed the president as a political corpse. Habyar-

imana was deemed to be too soft because of his acceptance of the Arusha

Accords and the opening of political space, which led to competition through

the introduction of multipartyism. It is less plausible to believe that the attack

was executed by the RPF, who had come out of the peace agreement in

a strong position. After all, the result was the genocide of hundreds of thou-

sands of Tutsis (Prunier, 1998: 220). Nonetheless, whoever was responsible for

the assassination was successful in creating an immediate explosion of chaos that

rattled the country, down to the furthest communes. McAdam et al. note that

processes of mobilization are triggered by environmental changes. Seen in this

light, the assassination of President Habyarimana was the trigger (McAdam

et al., 2001: 70). The hardliners immediately went to work on eliminating all

competition, including the moderate Hutu leaders. At the macro-level, genocide

had begun. How it would continue to spread throughout the country, however,

varied in temporal terms.

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Methodology

Process tracing

Using process tracing, I will draw on evidence from the Taba and Nyakizu com-

munes to conduct a micro-comparative case study. This method will allow me

to analyze the processes within each case and identify and demonstrate how

three causal mechanisms—competition for power, framing, and diffusion—

explain the dependent variable: the date of the onset of collective mobilization

into genocide in the commune. Process tracing is deﬁned as “the use of evidence

from within a case to make inferences about causal explanation of that case”

(Bennett & Checkel, 2015: 4). Therefore, by comparing a timeline of events

from the period of President Habyarimana’s assassination to the onset of geno-

cidal violence in Taba and Nyakizu, this study will identify a concatenation of

causal mechanisms within the episode to explain how the communes were

mobilized into committing genocide. The process-tracing method will enable

me to identify the concatenation of mechanisms, as derived from McAdam

et al.’s social movement theory on the dynamics of contentious politics, which

accounted for the temporal variation in mobilization (2001: 6). Critically, this

analysis will illustrate the central role of the local authority ﬁgure in facilitating

the mobilization process.

Process tracing at the meso-level is particularly conducive to explaining tem-

poral variations in individual cases. Research at this level is empirically advanta-

geous because the units of analysis, which involve subnational institutions, local

leaders, and events, offer the potential to uncover variation within a single-case

analysis (McDoom, 2014: 7). Meso-level quantitative data is sometimes difﬁcult

to obtain, so social movement theory offers a useful framework suitable for ana-

lyzing the available evidence. Aside from merely linking micro processes to the

macro-level, the meso-level dynamics often do not operate in the same fashion

at all. Therefore, the locally-based unit of analysis warrants attention on its own

accord (Kalyvas, 2003: 487). Moreover, because national-level variables remain

constant, it is possible to identify elements that explain variation independently

from macro-level features (Finkel & Straus, 2012: 64). In this analysis, the vari-

ation I seek to explain is the difference in timing of the onset of genocide

within each commune.

Case selection

Comparison at the commune level affords the opportunity to compare distinct

repertoires of mobilization that share most environmental factors and result in

distinct dependent variables. The relative homogeneity allows a greater certainty

in identifying the causal mechanisms responsible for the timing of the onset

(McDoom, 2014: 12). In accordance with this assertion, I have chosen the

communes of Taba and Nyakizu for several important reasons. The aim of this

study is to identify the factors that were responsible for the temporal

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discrepancies in the onset of genocide across Rwandan communes. Therefore,

I have chosen two communes located in Central and South Rwanda which, des-

pite sharing most characteristics prior to the genocide, experienced the onset of

violence at different times. In Taba, the onset was three days later than

expected,

and in Nyakizu the violence erupted seven days earlier than expected.

Both communes experienced strong interethnic relations prior to the onset of

violence and both were under the political control of the same political party,

albeit of different factions of that party—a critical distinction that is addressed

below. Consequently, the recent history of struggle within each of the com-

munes was political, not ethnic, in nature (Des Forges, 1999: 353–357;

McDoom, 2014: 42). In addition, their respective prefectures were densely

populated, experienced similar rates of population growth, and were located far

from the front of the civil war (Straus, 2006: 259–260). Wealth, education

rank, and levels of unemployment were also comparable between the two pre-

fectures (Straus, 2006: 259). Only Nyakizu was host to Burundi refugees, but

both communes would experience an inﬂux of Tutsi refugees from neighboring

regions throughout the course of the genocide (Des Forges, 1999: 394;

McDoom, 2014: 42). Given the relative homogeneity of these factors, the vari-

ation is considerable.

It must also be noted that the selection of Taba and Nyakizu was highly con-

tingent on the availability of data. Much evidence from Taba during the time of

the genocide is available due to the high-proﬁle nature of the burgomaster Jean-

Paul Akayesu’s case in the International Criminal Tribunal for Rwanda (ICTR).

Witness reports and documentation abound to offer a well-triangulated and cor-

roborated account of events within the commune (Prosecutor v. Akayesu, 1998).

The rich qualitative data available on Nyakizu can be attributed to the incredibly

thorough work and careful documentation of the renowned historian and

Rwanda expert Alison Des Forges in her book “Leave None to Tell the Story”

(1999). Through these sources, I was able to glean sufﬁcient information to

conduct my research through the method of process tracing. This study

hypothesizes that the independent variable is the political afﬁliation of the

burgomaster, which through a process of mobilizing mechanisms explains the

variation in the dependent variable—the date of the onset of genocide within

the commune—in each case.

Scope conditions

The scope of this study is constricted on several fronts. First, the claims made in

the previous section concerning the homogeneity between Taba and Nyakizu

were based on a combination of data, some of which is not available at the com-

mune level. There is a chance that either of the communes in question could be

statistical outliers for any of the categories. To be certain of the cross-case

6 Expected onset is the regional average (see Table 3.1).

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similarities, further disaggregation of the data would be necessary. Furthermore,

the selection of the communes itself is susceptible to a degree of arbitrariness,

given that I selected them based on the nature of their dependent variables.

Indeed, there is a possibility that completely different communes, both with

a similar degree of homogeneity but with different onset dates, could operate

under different mobilization dynamics than in Taba and Nyakizu. While

I intend to avoid this potential pitfall by emphasizing the mechanisms within

the process rather than testing my hypothesis a priori, it is necessary to consider

the constraints that a micro-comparative case study presents in regard to arbi-

trariness. Second, the micro-comparative case study that I conduct spans tem-

porally from President Habyarimana’s assassination on April 6, 1994 until the

onset of genocide in each respective commune. The study is limited in that the

history of pre-genocide Rwanda is inextricably linked to the dynamics of the

genocide at large, yet my analysis spans only several weeks. I have chosen this

time period because I ﬁnd that while the events leading up to April 6are indeed

relevant to the dynamics of the genocide at every level, they are most critical for

explanations at the macro national level. Nonetheless, I attempt to ameliorate

some of the issues associated with this by highlighting several key contextual fac-

tors below. Ultimately though, this analysis of local-level mobilization processes

need only begin with the triggering event—in this case the assassination that

occurred on April6. Finally, it must be noted that a potential for bias exists in

some of the sources from which my data has been drawn. Much of the consen-

sus on what happened at the local level during the genocide is based on testi-

mony, which can be problematic in terms of reliability.

Micro-comparative case analysis

The Nyakizu Commune

The southern prefecture of Butare was widely seen as a safe haven for Tutsis

during the ﬁrst weeks of the genocide, as the sole Tutsi prefect in the country

preached resistance and protection. The commune of Nyakizu, however, was an

anomaly. Led by an MDR-Power hardliner, the onset of genocide occurred

a full week earlier than the average Butare commune (Des Forges, 1999: 353;

Straus, 2006: 250–255). The mobilization of Nyakizu residents to participate in

the genocide was swift at the behest of the burgomaster. After consolidating

what remaining power he did not already possess circa April6, the leader insti-

gated and sustained the collective mobilization through framing and diffusion

mechanisms.

At the outset of the genocide, the Tutsi population in Nyakizu comprised

18 percent of the total population—far higher than the national average of 8 per-

cent, but consistent with the demographics in Butare (Des Forges, 1999: 355).

The intermarriage rates, which are commonly used to assess levels of social

cohesion, were thus predictably high and Butare had a reputation as an intellec-

tual center and bastion of tolerance (353). Like most of rural Rwanda, Nyakizu

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was poor and densely populated. Its shared border with Burundi was, however,

a distinguishing factor as 15,000 Burundi refugees ﬂowed into the commune

following the assassination of President Ndadaye in 1993 (363). Although intu-

ition would suggest that the inﬂux of refugees would exacerbate insecurities and

the potential for violence, Straus’s bivariate regression analysis does not ﬁnd this

to have had a statistically signiﬁcant relationship with the onset of genocide

(Straus, 2006: 60). The administrative and bureaucratic institutions of the state

operated with as much saliency as elsewhere in the country, as exempliﬁed by

the fact that the commune was the largest employer of salaried workers (Des

Forges, 1999: 355). The local politics in Nyakizu, however, were atypical of the

region. The prefect of Butare was the only Tutsi and Liberal Party member in

the country to hold the prefectural title (354). In marked contrast, Nyakizu’s

burgomaster, Ladislas Ntaganzwa—a member of the extremist Power wing of

the MDR, which had not historically had a presence in Butare—had ascended

to power through the forceful removal of opposition (357). Through adoption

of the radical ethnic Hutu Power ideology and a swift consolidation of power,

Ntaganzwa became the unquestioned local leader and by early 1994 had fos-

tered a well-developed personal and professional inner network of backers

within the commune, and received signiﬁcant support from national MDR-

Power leaders (361). Residents reported that military training sessions had

begun in the fall of 1993 and that Ntaganzwa controlled a stockpile of weap-

onry (365). These were the demographic and political conditions under which

Nyakizu residents found themselves when news of President Habyarimana’s

assassination reached the commune.

News of the plane crash on April 6 reached most residents by radio (Des

Forges, 1999: 368). An acute sense of uncertainty descended upon Nyakizu

immediately, as people ﬂeeing violence in neighboring prefectures began to

arrive. At this point, the exact nature of the reported violence remained unclear

and confusion and uncertainty plagued the community as normal activities were

disrupted (368). During these ﬁrst few days, burgomaster Ntaganzwa made

public reassurances of the safety of Tutsis in his commune, while simultaneously

holding private meetings with his inner circle. Facing no competition for power

from within Nyakizu, the burgomaster was the supreme authority ﬁgure

through which information and instructions were diffused and disseminated.

Ntaganzwa took keen advantage of the “space of opportunity”that the assassin-

ation and ensuing period of acute insecurity provided. There were few challen-

gers to the burgomaster in the competition for power. Thus began the

direction, at the behest of Ntaganzwa, that Tutsis were to gather in Cyahinda

Church “for their safety”(370). At the same time, the inner circle was spreading

an anti-Tutsi propaganda campaign throughout the commune. By appropriating

existing ethno-social cleavages—which were particularly vulnerable to manipula-

tion by the acute insecurity following the events of April 6—Ntaganzwa and his

cronies began referring to all Tutsis as inkotanyi and attributed grave levels of

threat to Hutus by the Tutsi “enemy.”On April 13, broadcasts on Radio Télé-

vision Libre des Mille Collines (RTLM) falsely reported that inkotanyi were

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hiding among the people in Gitarama and Butare, lending further credence and

certiﬁcation to the framing efforts of Ntaganzwa and his supporters (372–373).

That night, the ﬁrst Nyakizu Tutsis were killed (373).

The next morning, Ntaganzwa and members of his inner circle held public

meetings throughout the commune encouraging participation in patrols. From

this point on, reports of violent repercussions against nonparticipants prolifer-

ated (Des Forges, 1999: 374). The threat of intra-Hutu coercion was diffused

via incitements at the public meetings and rallies, as well as by rumors and hear-

say among residents. Ntaganzwa reportedly drove around the commune with

a loudspeaker, exhorting residents to gather the “rebels”at Cyahinda to prevent

them from attacking, and ordered the killers to “get to work”and “leave no

one alive”(377). The repertoires of diffusion—of the appropriation of Tutsis as

“enemies”posing an imminent mortal danger to Hutus and of the threat of

punishment for nonparticipating Hutus—were repeated by the burgomaster as

he traversed the commune in his pick-up truck on his mobilization tour. By

April 15, an estimated 20,000 people had been gathered at Cyahinda (395).

Accompanied by up to 2,000 others, Ntaganzwa arrived at the church and, over

the loudspeaker, issued a countdown: “One, two, three”(383). Genocide had

reached Nyakizu.

Framing and diffusion efforts continued throughout the commune during the

massacres. The burgomaster emerged from Cyahinda with a fake bandage tied

around his head and proceeded to drive throughout the commune spreading

wild claims of Tutsi brutality that nearly killed him. Such claims were rampantly

employed to inspire more recruits as the genocide continued (Des Forges,

1999: 386). It is of course important to note that not all génocidaires are cre-

ated equal. That is, the levels of participation varied widely within the perpetra-

tor community (Straus, 2006: 110). The burgomaster in Nyakizu made

concerted efforts to mobilize bona ﬁde killers, not just looters (who far outnum-

bered the former). To do so, Ntaganzwa had the remaining inﬂuential Hutu

moderates in the commune killed. In an effort to further distort identity frames,

the murders were reported over the radio as having been committed by Tutsi

(Des Forges, 1999: 388–389).

On April 17, the prefect of Butare was removed from his post, having lost

control (391). Following the orders of national MDR-Power leaders announced

on Radio Rwanda, the burgomaster and his group went door-to-door to weed

out any remaining dissenters and incite more joiners (392). Another notable

event occurred when Interim President Théodore Sindikubwabo stopped in

Nyakizu as part of his mobilization tour. He gave a speech endorsing the

ongoing violence, providing further certiﬁcation of the burgomaster’s words and

actions (393). Soldiers armed with heavy weaponry arrived the next day to ﬁnish

the genocide at Cyahinda. By April 22, the killers had completed the ten-day

massacre. The dead at the church alone numbered at least 5,500, and perhaps

as many as 15,000 (395).

Despite the fact that the prefect of Butare was Tutsi and discernibly worked

rigorously to resist the violence from breaking out in the region, Ntaganzwa

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was able to carry out his own genocidal agenda in direct violation of the admin-

istratively superior orders of the prefect (Des Forges, 1999: 402). This provides

further evidence that the role of the burgomaster is deeply resonant in the local-

level dynamics of social movements in Rwanda. In a region characterized by

a delayed onset of violence, the anomaly of Nyakizu can be primarily attributed

to the one factor that set it apart from the outset: Ntaganzwa’safﬁliation with

the MDR-Power party and ruling hardliners. The initial competition for (or

rather, consolidation of) power in the wake of Habyarimana’s assassination was

swift—practically nonexistent were it not for the Tutsi prefect and several of the

moderates mentioned above that Ntaganzwa ordered murdered. From there,

the mobilization mechanisms of framing and diffusion ﬂowed through the

burgomaster’s unchallenged command. The result was the swift commencement

of genocide in a region otherwise characterized as a bastion of resistance.

Taba Commune

Taba is located in the Gitarama prefecture of central Rwanda. Historically, the

region had been home of the Parmehutu party,

whose agenda had reemerged

with the introduction of multipartyism in 1991 as the MDR. The genocide was

late in reaching Gitarama, and Taba was no exception. In fact, the onset of

genocide occurred three days later than the two-week average (from the date of

Habyarimana’s assassination) observed in the rest of the commune (Straus,

2006: 83). The burgomaster, Jean-Paul Akayesu, gained worldwide infamy as he

became the ﬁrst individual to become a convicted criminal at the ICTR (The

Prosecutor v. Jean-Paul Akayesu (Trial Judgement), 1998) for his acts commit-

ted during the genocide (Straus, 2006: 87). What is less known is that the delay

in violence in Taba was made possible by the moderate MDR leader, even

though his eventual and sudden political reversal of position instigated genocide

in the commune all the same (83).

In the run-up to the genocide, political maneuvering was a more salient fea-

ture of tensions within the community than were ethnic cleavages. Approxi-

mately 4,680 Tutsi comprised 8 percent of the population of the Taba

commune just before the genocide in 1994, which was around the average

countrywide composition. Social cohesion within the community, as evidenced

by no reported incidents of ethnic violence prior to the genocide, was notably

strong (McDoom, 2014: 42). Political tensions between the recently ousted

MRND and the MDR (led by Akayesu), were seemingly more relevant than

ethnic ones. The divide between MRND members primarily composed of north-

ern Hutus, and the southern and centrally based Hutus of the MDR, was con-

tentious from the time of the democratic openings in 1991. Gitarama was the

7 The Parmehutu party ruled Rwanda in the period immediately following independence. Its

strength emanated from the south and central regions. The MDR, created with the introduc-

tion of multipartyism, was a reincarnation of the party (McDoom, 2014: 42).

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birthplace of the Parmehutu party of old and was consequently a stronghold for

the MDR in the early 1990s. Intra-Hutu political inﬁghting in the wake of RPF

advances and the disintegrating authority of Habyarimana resonated in Taba,

where tensions followed party lines (42).

Immediately following the plane crash on April 6, Jean-Paul Akayesu preached

resistance to the extremist hardliners and went to signiﬁcant lengths to prevent

violence from fomenting in Taba. For example, he arranged for the commune

ofﬁces to provide safe sanctuary for Tutsis and he dispatched three of the com-

mune policemen to protect them. In public meetings, he insisted on solidarity

(McDoom, 2014: 42). Interahamwe forces repeatedly attempted to disrupt the

commune, but witnesses from the ICTR testiﬁed to Akayesu’s efforts to main-

tain peace (Straus, 2014: 339). As burgomaster and therefore the preeminent

ﬁgure of power in the commune, Akayesu was deemed by the ICTR as being

responsible and authoritatively capable of maintaining order (The Prosecutor

v. Jean-Paul Akayesu (Trial Judgement), 1998). Thus, when the burgomaster

held meetings in the days following the assassination and instructed the residents

to act against the violence, his words were widely observed. Residents even went

so far as to kill Interahamwe attempting an incursion at the behest of Akayesu.

The pattern of resistance led by the burgomaster followed this trajectory for the

ﬁrst ten days following April 6 (Straus, 2014: 339). However, competition for

power in the region began to inﬁltrate Taba and destabilize the status quo.

On April 12, the interim national government moved its capital from Kigali

to Gitarama (McDoom, 2014: 42). With this move, accompanied by an esti-

mated 1,000 Interahamwe, pressure from above mounted against Akayesu’s

monopoly on authority (Melvern, 2006: 195). The competition for power cul-

minated in a meeting in Gitarama on April 18 between the extremist interim

prime minister Jean Kambanda and noncompliant burgomasters (McDoom,

2014: 42). The diffusion of an intra-Hutu coercion threat from the national

hardliner leaders forced Akayesu to determine that switching sides was either his

only, or his best, option for maintaining authority (Straus, 2006: 84). On the

morning of April 19, he broadcast a new message at a meeting of over 100

people, in which he urged the residents to eliminate the RPF and its accom-

plices. This message was framed in such a way that the people widely under-

stood that the RPF was synonymous with all Tutsis (The Prosecutor v. Jean-Paul

Akayesu (Trial Judgement), 1998). Appearing alongside an Interahamwe

member waving a document, Akayesu announced that the inkotanyi and local

“accomplices”planned to murder the Hutus and take supreme control of

Rwanda (Straus, 2006: 84). In response, he gave orders for speciﬁc Tutsi to be

murdered. At his command, shortly after the meeting the residents of Taba

obeyed and began killings. Genocide had come to Taba. By the end of June, an

estimated 2,000 Tutsis were murdered under the command of Jean-Paul

Akayesu (The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), 1998).

While the maintenance of peace in the days in the immediate aftermath of the

assassination can be largely attributed to the efforts of burgomaster Akayesu, so

too can the eventual genocide which took place. The decision of the ICTR

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supported this claim and convicted Jean-Paul Akayesu for direct and public

incitement to commit genocide (The Prosecutor v. Jean-Paul Akayesu (Trial

Judgement), 1998). Interim Prime Minister Kambanda conﬁrmed the signiﬁ-

cance of local authority ﬁgures in the mobilization process by remarking that in

areas where the MRND was not as strong, the population did not kill until it

was endorsed as policy by the local authority (Melvern, 2006: 196). Diffusion

of identity frames that conﬂated all Tutsis with the RPF thus operated through

the command of the burgomaster. At least 2,000 Tutsis were killed in the com-

mune (The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), 1998). Despite

having initially led a resistance to the hardliners, Akayesu acquiesced to their

agenda during the period of political competition following April 6and thereby

instantaneously enlisted his dense network of authority in Taba to diffuse the

genocidal mobilization orders, threats of noncompliance, and propaganda fram-

ing the Tutsi synonymously with the inkotanyi. During the public meetings, he

disseminated the appropriated identity frames and diffused threats of coercion

for nonparticipants. Like in Nyakizu, these mobilization mechanisms of framing

and diffusion ﬂowed through the burgomaster following the resolution of the

competition for power.

Attributing the difference

My ﬁndings support the work of scholars from both of the ﬁelds with which

this study is concerned. In terms of social movement studies, my conclusions are

consistent with one of the central tenets of McAdams’s political process model:

that social movements are political phenomena (1999). Nyakizu and Taba pro-

vide clear examples of how differences in the political afﬁliation of the burgo-

masters of otherwise reasonably similar communes exhibiting the same sequence

of mobilization mechanisms led to a signiﬁcant difference in the timing of the

onset of genocide. Table 3.1 shows that Nyakizu was “tipped”into genocide

seven days earlier than the regional average, while Taba did so later by three

days. The combined difference relative to the expected onset date (the average

of all onset dates within the respective prefecture) was thus a spread of ten days.

My analysis attributes the difference to the initial (as of April 6, 1994) political

preferences of the burgomasters, Ladislas Ntaganzwa and Jean-Paul Akayesu. In

terms of the literature on the Rwandan genocide, my argument is consistent

with Straus’sﬁndings from his bivariate regression analyses of explanatory vari-

ables to describe regional variations in the onset of violence, in which the stron-

gest statistical relationship was with the degree of support for the ruling MRND

party

within the commune. In these areas, Straus found the violence was more

likely to foment earlier. Conversely, in areas where there was opposition to the

hardliners, the genocide took longer to occur (Straus, 2006: 61).

8 The MRND consisted of Hutu hardliners, as did MDR-Power. For the purposes of this ana-

lysis, I assume mutual support for the genocide between these factions.

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As illustrated in Table 3.1, Taba and Nyakizu experienced comparatively simi-

lar environmental factors in the days leading up to the genocide. The ways in

which they diverge—for example, the presence of Burundi refugees and the

high Tutsi population in Nyakizu—have not been found to have a statistically

signiﬁcant relationship to the onset of genocide (Straus, 2006: 60). The most

salient difference between the communes was the afﬁliation of Ntaganzwa with

the “Power,”or hardliner branch of the MDR. Akayesu’s active status as an

MDR of the non-hardliner brand blocked the mobilization mechanisms of fram-

ing and diffusion until he switched sides during the competition for power fol-

lowing the government’s move to Gitarama and the diffusion of coercion

threats for noncompliance (Straus, 2006: 84). It should also be reiterated that

the prefect—a post of administrative authority higher than the burgomaster—in

Butare (Nyakizu’s prefecture) was the exact opposite of a hardliner. In fact, it

was the only Liberal Party prefect in the country (Des Forges, 1999: 384). This

fact supports my contention that it was the burgomaster’safﬁliation that mat-

tered most in terms of local mobilization, because intuition would suggest that

a moderate presence at the prefect level should have trumped the power of the

burgomaster, but such was not the case. Therefore, it was the burgomaster’s

politics that mattered most in community mobilization. I do not argue that the

onset of genocide was contingent on the agency of the authority ﬁgures, nor do

I mean to overstate the role of individuals in a complex, complicated episode.

Rather, my analysis shows that mobilization mechanisms of framing and

Table 3.1 Comparing the communes before April 6, 1994

Taba

(Gitarama)

Nyakizu

(Butare)

Onset date of relative

to regional average +3 -7

Party afﬁliation of

burgomaster MDR MDR-Power

Party afﬁliation of

prefect MDR Liberal Party

% of Tutsi population

in the commune 818

# of Tutsi killed 2000 5,500–15,000

Recent history of

ethnic violence No, but political struggles No, but political

struggles

Military presence Not initially, but 1,000 Interahamwe fol-

lowed the interim government’s move to

Gitarama

Yes, as early as

September 1993

Distance from the

“front”(RPF position) Considerable Considerable

Burundi refugees No Yes

Interethnic cohesion Strong Strong

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diffusion ﬂowed through the burgomasters after the competition for power was

complete. The concatenation of mechanisms was the same in each commune—

an initial competition for power, followed by framing and diffusion orchestrated

by the burgomasters through public meetings; dissemination of frames through

RTLM broadcasts; propagandizing and rumor-spreading through informal net-

works; signaling of pro-genocide positions; certiﬁcation of authority, etc. Yet

the length of time it took each repertoire to culminate in collective action and

mass violence was not the same. I argue that the difference, then, is attributable

to the burgomasters’relationship with the ruling hardliner party. Framing and

diffusion mechanisms operated through the command of the local authority, and

the manner of their command was determined during the competition for

power. The burgomasters were not the kings, but rather the kingpins in the

genocidal episode of transgressive contention.

Alternative explanations

In this study, I have given little attention to theories of the impact of social net-

works in the episodes of collective action. Studies by Lee Ann Fujii and Omar

McDoom have found that social networks are critical for understanding who

did the killing and how the violence spread (Fujii, 2009; McDoom, 2011a).

While networks of inﬂuence are endogenous to my argument that mechanisms

of collective action operated through the burgomaster, I chose to avoid delving

deeply into these theories because the principal focus of this study is to answer

how mobilization occurs at the meso-level, and to date social network data is

primarily concentrated on the individual, micro-level, as exempliﬁed by Fujii’s

comprehensive interviewing of selected génocidaires (2009).

Another alternative explanation that I have not fully disproven in my ﬁndings

includes the role of the militia in inﬂuencing the onset date. I have shown that

the existence of military training programs in Nyakizu in late 1993 was an

important environmental factor, as was the arrival of 1,000 Interahamwe with

the interim government’s move to Gitarama on April 12, 1994. I contend that

the nexus of tensions within the commune hinged ﬁrst and foremost along pol-

itical lines, and that military power emanated from political power and not vice

versa. However, alternative explanations could attribute greater importance to

these factors where I have instead featured the role of the burgomaster.

Finally, the mechanisms I have identiﬁed in this study are susceptible to

a degree of selection bias and arbitrariness. McAdam et al.’s theoretical frame-

work of contentious politics identiﬁes far more interactive causal mechanisms

than the constraints of this study allowed to be considered. For example, mech-

anisms of brokerage, radicalization, and convergence are relevant to the episode,

yet I chose to examine the competition for power, framing, and diffusion

because through my method of process tracing I found these mechanisms to

feature most prominently. While more comprehensive research could beneﬁt

from analyzing as many mechanisms as feasible, nonetheless the mechanisms

selected for this study are sufﬁcient to support my ﬁndings.

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Discussion

As this study conﬁrms, local political dynamics matter. Nyakizu and Taba experi-

enced the onset of the 1994 genocide at different times because their respective

burgomasters signiﬁcantly inﬂuenced the course of the mobilization mechan-

isms. The communities “tipped”into violence at the behest of these men, who

instigated a sequence of mobilizing mechanisms. The difference in their political

afﬁliations accounted for the temporal difference in the onset dates.

The difference in relative averages of the onset of genocide has signiﬁcant

policy implications. Policymakers have long struggled to predict and prevent

genocide. There are, of course, signiﬁcant political, legal, and logistical obs-

tacles to these efforts. Furthermore, models of genocide prediction are plagued

by over-prediction (Verdeja, 2016: 22). By looking at local-level dynamics of

violence rather than macro-level indicators, scholars are more reasonably able

to make predictions on where and when violence will occur within a given con-

ﬂict (McDoom, 2014: 25). For example, in light of my ﬁndings if a mandate

were acquired to dispatch a certain number of peacekeeping forces, my ﬁndings

could provide useful insights into which locales offer the largest window of

opportunity for effective deployment. In Nyakizu, any dispatch of aid would

have been unlikely to arrive in time to quell the violence. In Taba, however,

a peacekeeping force could feasibly have dispatched and arrived prior to the

onset.

The ultimate goal for scholars of genocide is generally to prevent such vio-

lence from occurring in the future. However, there remains no uniﬁed theory

of genocide and even the best calculations are subject to false positives (Ver-

deja, 2016: 22). Politically, this reduces the will and capital of international

actors to take preventive action against the crime to almost nil. The recent

trend in conﬂict studies calling for further analysis into meso-level processes

in mobilization could offer policymakers more realistic agendas in mitigating

violence. Local-level assessments provide an empirical ability to account for

variation within and across conﬂicts, and social movement theory offers

a framework that is conducive to extrapolating from meso-level analyses

(McDoom, 2014: 12). While stopping violence before it starts is often an

impossible task or too tall an order, this new research could provide roadmaps

for the efﬁcient, targeted allocation of resources to curb conﬂicts as they

unfold. As social movement theory has shown, collective mobilization pro-

cesses consist of a concatenation of mechanisms that repeat themselves across

and within contentious episodes. By understanding how they operate and

what accounts for the differences in their outcomes, we can make better pre-

dictions about how, where, and when future episodes of genocide might

occur. In the case of Rwanda, as proven by this analysis, it was the burgo-

masters who held the keys of contention. They were not the kings, but the

kingpins of contention.

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Appendix Timeline of events

Taba:

1 April 6 Habyarimana assassinated

2 April 12 Interim government moves its capital from Kigali to Gitarama

3 April 13 RTLM announces that inyenzi,or“cockroaches,”are hiding

among refugees ﬂeeing to Butare and Gitarama

4 April 18 Meeting ordered by Prime Minister Jean Kambanda in Gitarama to

address the prefecture’s resistant burgomasters

5 April 19 Akayesu addresses several hundred Taba residents and urges them

to unite and hunt down the enemy

6 April 19–20 Mass killing

7 June 27 Akayesu ﬂees the commune ahead of RPF arrival

Nyakizu:

1 April 6 Habyarimana assassinated

2 April 6 Witnesses see smoke from houses burning in Gikongoro

3 April 8 Tutsi begin to gather at Cyahinda Church

4 April 12 News that the Interahamwe are targeting Tutsi reaches Nyakizu.

Ntaganzwa holds a meeting with his inner circle at the communal ofﬁce

5 April 13 RTLM announces that inyenzi are hiding among refugees ﬂeeing

to Butare and Gitarama

6 Night of April 13 First Tutsis are killed in Nyakizu. Ntaganzwa holds

a meeting at Cyahinda and orders residents to carry out patrols and stay

away from the church

7 April 15 Preliminary attack on Cyahinda

8 April 16 National police obtain pick-up trucks

9 April 17 Prefect Habyarimana arrives with other ofﬁcials and killing brieﬂy

stops

10 April 17 National radio announces the removal of Habyarimana

11 April 18 Interim prime minister makes a speech at the communal ofﬁce

12 April 20 Killing at Cyahinda is complete. At least 5,500 Tutsi are estimated

dead

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Part II

International and

national legal dimensions

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4 The crime of genocide in its

(nearly) inﬁnite domestic variety

Tamás Hoffmann

International unity and domestic fragmentation of the deﬁnition

of the crime of genocide

Since the adoption of the Genocide Convention by the United Nations General

Assembly on 9 December 1948, the crime of genocide has been universally

regarded as the “crime of crimes”

in international criminal law.

Article II of

the Convention deﬁned genocide as:

[a]ny of the following acts committed with intent to destroy, in whole or in

part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

In contrast to all other international crimes, the legal concept of genocide has

remained unchanged ever since on the international plane. The Genocide Con-

vention’sdeﬁnition was adopted and reiterated verbatim in the statutes of all

international and internationalized criminal fora whose material jurisdiction

extended to genocide –thus it was followed by the International Criminal

1 This publication is based on research supported by the Corvinus Institute for Advanced Stud-

ies. I would like to thank and acknowledge the assistance of Mirwais Janan with the translation

of the relevant section of the Criminal Code of Afghanistan, and Guido Acquaviva and Kevin

Jon Heller for their comments on the draft. The usual caveats apply.

2Prosecutor v. Kambanda (Case No. ICTR-97-23-S), Judgment and Sentence, 4 Septem-

ber 1998, para. 16.

3 Convention on the Prevention and Punishment of the Crime of Genocide (1951) 78

UNTS 277.

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Tribunal for the Former Yugoslavia (ICTY),

the International Criminal Tribu-

nal for Rwanda (ICTR),

the International Criminal Court (ICC),

the Iraq

High Tribunal,

and the Extraordinary Chambers of the Courts of Cambodia.

Such consensus and consistency might seem obvious since, after all, the prohib-

ition of genocide has achieved jus cogens status,

and as a peremptory norm of

general international law it can only be modiﬁed by “the international commu-

nity of States as a whole.”

Given the general acceptance of this construction and the widespread ratiﬁca-

tion of the Genocide Convention

and the Rome Statute of the ICC,

one

could reasonably expect that the domestic deﬁnitions of the crime of genocide

would be identical to the international one. Until now, the scholarly literature

only focused on a select number of jurisdictions and generally held that even

though there are a few notable examples of changes in domestic criminal legisla-

tion, these can be seen as aberrations. However, after conducting for the ﬁrst

time a comprehensive review of the domestic criminal laws of 196 countries (all

193 UN member states and the Holy See, Kosovo, and Palestine) and the Spe-

cial Administrative Region of Macao, I have found that the differences are actu-

ally much more signiﬁcant than hitherto assumed, since 100 countries and the

Special Administrative Region of Macao have opted to change –through their

national implementations –at least some aspects of the internationally recog-

nized deﬁnition of genocide, often signiﬁcantly expanding or limiting the scope

of application of the crime.

4 Art. 4 of the Statute of the International Criminal Tribunal for the Former Yugoslavia. UN

Doc. S/RES/827 (1993).

5 Art. 2 of the Statute of the International Criminal Tribunal for Rwanda. UN Doc. S/RES/

955 (1994).

6 Art. 6 of the Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90.

7 Art. 11 of Law No. (10) 2005 of the Iraqi Higher Criminal Court, 18 October 2005.

8 Art. 9 of the Agreement between the United Nations and the Royal Government of Cambo-

dia concerning the Prosecution under Cambodian Law of Crimes Committed during the

Period of Democratic Kampuchea of 2003.

9Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002)

(Democratic Republic of the Congo v. Rwanda), Jurisdiction of the Court and Admissibility of

the Application, 3 February 2006, para. 64. International Law Commission, Peremptory

norms of general international law (jus cogens). Text of the draft conclusions and draft annex

provisionally adopted by the Drafting Committee on ﬁrst reading, 29 May 2009. Annex (b).

UN Doc. A/CN.4/L.936.

10 Art. 53 of the Vienna Convention on the Law of Treaties (1980) 1155 U.N.T.S. 331.

11 The Genocide Convention currently has 152 States Parties. See https://treaties.un.org/pages/

ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4 [downloaded on 8 September

2019].

12 A total of 122 countries are currently States Parties to the Rome Statute. See https://asp.icc-

cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%

20rome%20statute.aspx [downloaded on 8 September 2019].

13 During the research I have always used the original language of the domestic criminal law if it

was in English, German, French, Hungarian, Italian, Spanish, or Portuguese. In all other

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This chapter ﬁrst classiﬁes the different ways domestic criminal legislation can

restrict or expand the scope of application of the crime of genocide, and then

explains the potential reasons for these changes. Finally, I speculate on the

potential ramiﬁcations of the existence of these domestic varieties on the devel-

opment of the international law of genocide.

Changing the scope of application of the crime of genocide

through national implementation

Art. 5 of the Genocide Convention requires that states adopt “the necessary

legislation to give full effect to [its] provisions,”but it does not create an

international obligation to incorporate the precise deﬁnition of genocide in

the member states’criminal legislation. Similarly, Members of the Rome Stat-

ute undertake an obligation to avoid “the culture of impunity”by prosecuting

the international crimes within the material jurisdiction of the ICC, but this

does not include codifying the exact same terms. Even though the principle of

complementarity promotes national implementation since states want to avoid

being declared “unable to prosecute”

and thus have to take measures to

make their domestic legal systems compatible with the Statute, in practice

states have often retained older and different deﬁnitions of international

crimes.

The application of international legal norms in domestic legal systems is

dependent on the respective national constitutional framework, which is trad-

itionally classiﬁed either as monist (if domestic law and international law con-

stitute a single system) or dualist (if the domestic legal order is separate from

international law).

Even though theoretically courts could directly apply

customary law norms and consequently prosecute international crimes in

monist and even in some dualist countries, in practice most countries prefer

to enact implementing legislation to avoid potential complications during

domestic criminal proceedings. However, national implementation might

result in either limiting or expanding the scope of application of the crime of

genocide.

instances I had to rely on the available English translations, which could potentially result in

mistakes.

14 Jan K. Kleffner, “The Impact of Complementarity on National Implementation of Substan-

tive International Criminal Law”1 (2003) Journal of International Criminal Justice 86–113,

at 88.

15 Julio Bacio Terracino, “National Implementation of ICC Crimes Impact on National Juris-

dictions and the ICC”5 (2007) Journal of International Criminal Justice 421–440, at 423.

16 For a thorough examination of the relationship between domestic and international law, see

Dinah Shelton (ed.) International Law and Domestic Legal Systems –Incorporation, Trans-

formation, and Persuasion (Oxford: Oxford University Press, 2011).

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Limiting the scope of application of the crime of genocide

Limiting the scope of application of the crime of genocide by excluding speciﬁc

protected groups

Currently nine states have chosen to omit speciﬁc protected groups from their

domestic criminal legislation. Racial groups are not included in the deﬁnition of

genocide in Bolivia,

Ecuador,

Guatemala,

Paraguay,

and Peru

; and

national groups are missing from the criminal code of Nicaragua,

while ethnic

groups are excluded from the criminal law frameworks of Costa Rica,

Salvador,

and Oman.

It must be emphasized, however, that none of these

states opted to exclude more than one protected group. This is potentially sig-

niﬁcant as the exact deﬁnition of protected groups is far from obvious. Even

though the ICTR attempted to deﬁne them based on objective criteria and

clearly delineated them,

that approach is not generally accepted. Raphael

Lemkin himself originally described genocide as “the destruction of a nation or

of an ethnic group,”

and Schabas convincingly argues that in practice it is

often virtually impossible to differentiate between protected groups since these

terms “not only overlap, they also help to deﬁne each other, operating much as

four corner posts that delimit an area within which a myriad of groups covered

by the Convention ﬁnd protection.”

Consequently, the absence of reference

to a national, ethnic, or racial group from the domestic deﬁnition of genocide

might not necessarily result in excluding a targeted group from protection.

Moreover, most of these countries added social or political groups to their lists

of protected groups, which counterbalances this omission.

17 Art. 138 of the Criminal Code of the Plurinational State of Bolivia of 1972.

18 Art. 79 of the Criminal Code of the Republic of Ecuador of 2014.

19 Art. 376 of the Criminal Code of the Republic of Guatemala of 1973.

20 Art. 319 of the Criminal Code of the Republic of Paraguay of 1997.

21 Art. 319 of the Criminal Code of the Republic of Peru of 1991.

22 Art. 484 of the Criminal Code of the Republic of Nicaragua of 2007.

23 Art. 382 of the Criminal Code of Costa Rica of 1998.

24 Art. 361 of the Criminal Code of the Republic of El Salvador of 1997.

25 Art. 88 of the Royal Decree No. 110 on the Military Jurisdiction Law of the Sultanate of

Oman of 2011.

26 In the Akayesu case, the ICTR deﬁned national groups as a collection of people sharing the

same citizenship (para. 512), ethnic groups as people sharing a common language and culture

(para. 513), and racial groups as people sharing “hereditary physical traits often identiﬁed

with a geographical region”(para. 514), while religious groups were characterized by “the

same religion, denomination or mode of worship”(para. 515). Prosecutor v. Akayesu, Case

No. ICTR-96-4-T, Judgment of 2 September 1998.

27 Raphael Lemkin, Axis Rule in Occupied Europe (Washington: Carnegie Endowment for

International Peace, 1944) 79.

28 William A. Schabas, Genocide in International Law: The Crime of Crimes (Cambridge: Cam-

bridge University Press, 2010) 129.

29 See “‘Over-deﬁnition’of protected groups,”below.

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On the other hand, the Latvian approach is somewhat different as it did not

speciﬁcally exclude religious groups but instead only included a smaller subset

by protecting “deﬁned religions.”

This is potentially problematic as it might

not extend to smaller religious groups

or people sharing common spiritual

ideas.

Similarly, the Dari language version of the Criminal Code of Afghani-

stan replaces ethnic groups with tribal groups. However, this seems to be

a translation error as the Pashto language version retains the original inter-

national deﬁnition.

Limiting the scope of application of the crime of genocide by including the

requirement of a genocidal plan

There has been a recurring debate in international scholarship concerning the

necessity of including a “contextual element”to the deﬁnition of genocide; i.e.

whether an individual genocidal act has to be committed in a broader context

forming part of other similar acts against the protected groups, or can be com-

mitted without any cooperation with other perpetrators, possibly even by

a“lone génocidaire.”

Lemkin’s original conception required “a coordinated plan of different actions

aiming at the destruction of essential foundations of the life of national groups,

with the aim of annihilating the groups themselves.”

The ICTY, however,

rejected this notion. In the JelisićAppeals Judgment the Tribunal emphasized

that “the existence of a plan or policy is not a legal ingredient of the crime”

although the existence of such a plan or policy may be important to proving the

crime.

This view was also supported by the International Court of Justice in

the Bosnia Genocide case.

Nevertheless, that authoritative statement failed to settle the debate. Though

some scholars rejected the idea that even an isolated individual acting alone can

30 Art. 71 of the Criminal Code of the Republic of Latvia of 1998.

31 Daniel D. Ntanda Nsereko, “Genocide: A Crime against Mankind”in Gabrielle Kirk McDo-

nald and Olivia Swaak-Goldman (eds.) Substantive and Procedural Aspects of International

Criminal Law –The Experience of International and National Courts, Vol. 1. (The Hague:

Kluwer, 2000) 115–140, at 117.

32 Antonio Planzer, Le Crime de Génocide (St. Gallen: Schwald, 1956) 98.

33 Art. 333 of the Criminal Code of the Islamic Republic of Afghanistan of 2017.

34 Raphael Lemkin, Axis Rule in Occupied Europe (Washington: Carnegie Endowment for

International Peace, 1944) 79.

35 Prosecutor v. Jelisić, Case No. IT-95-10-A, Judgement of 5 July 2005, para. 48.

36 “The speciﬁc intent to destroy the group in whole or in part, has to be convincingly shown

by reference to particular circumstances, unless a general plan to that end can be convincingly

demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its existence,

it would have to be such that it could only point to the existence of such intent.”ICJ, Case

Concerning Application of the Convention on the Prevention and Punishment of the Crime of

Genocide (Bosnia And Herzegovina v. Serbia And Montenegro), Judgment of 26 Febru-

ary 2007, para. 373.

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commit genocide,

others have vehemently rejected this thesis.

The ICC

Elements of Crimes tried to take a middle position by requiring that “the con-

duct took place in the context of a manifest pattern of similar conduct directed

against that group or was conduct that could itself effect such destruction.”

While the ICTY held that this deﬁnition “was not mandated by customary inter-

national law,”

this approach was upheld in the Al Bashir arrest warrant deci-

sion, which did “not observe any irreconcilable contradiction between the

deﬁnition of the crime of genocide provided for in article 6 of the Statute and

the contextual element provided for in the Elements of Crimes with regard to

the crime of genocide.”

While the domestic criminal legislation of the majority of states does not expli-

citly require the existence of contextual elements, there are some notable excep-

tions. The existence of a “concerted plan”is explicitly spelt out in the criminal

codes of Cabo Verde,

the Central African Republic,

the Republic of Congo,

France,

and Niger.

Albania prosecutes the execution of a “premeditated

plan,”

Andorra of a “preconceived plan,”

and Georgia of an “agreed plan,”

while Turkey punishes following a plan.

Other countries also allude to the

necessity of following a plan –thus Angola prescribes the existence of

a“concerted operation”

and Ecuador criminalizes the commission of acts “in

a systematic and generalized manner.”

37 See, for example, Antonio Casse, International Criminal Law (Oxford: Oxford University

Press, 2008) 140–141; Gerhard Werle, Principles of International Criminal Law (The

Hague: TMC Asser, 2009) 271–273.

38 Schabas, for instance, acerbically stated that “The theory that an individual, acting alone, may

commit genocide is little more than a sophomoric hypothèse d’école, and a distraction for

judicial institutions.”William Schabas, “Darfur and the ‘Odious Scourge’: The Commission

of Inquiry’s Findings on Genocide,”18 Leiden Journal of International Law (2005)

871–885, at 877.

39 Art. 6(a)(4), (b)(4), (c)(5), (d)(5), (e)(7), ICC Elements of Crimes.

40 Prosecutor v. Krstić, Case No. IT-98-33-A, Judgment of 19 April 2004, para. 224.

41 Al Bashir (Decision on Arrest Warrant), Case No. ICC-02/05-01/09, Decision of

4 March 2009, para. 132.

42 Art. 268 of the Criminal Code of the Republic of Cabo Verde of 2003 (plano concertado).

43 Art. 152 of the Criminal Code of the Central African Republic of 2007 (plan concerté).

44 Art. 1 of the Law 8/98 of 31 October 1998 on the Deﬁnition and Repression of Genocide,

War Crimes, and Crimes against Humanity of the Republic of Congo (plan concerté).

45 Art. 211(1) of the Criminal Code of the Republic of France of 1992 (plan concerté).

46 Art. 208 of the Criminal Code of the Republic of Niger of 2003 (plan concerté).

47 Art. 73 of Criminal Code of the Republic of Albania of 1995.

48 Art. 456 of the Criminal Code of the Principality of Andorra of 2005 (plan préconçu).

49 Art. 407 of the Criminal Code of the Republic of Georgia of 1999.

50 Art. 76(1) Criminal Code of Turkey of 2004.

51 Art 367 of the Criminal Code of Angola of 2019 (actuação concertada).

52 Art. 79 of the Criminal Code of the Republic of Ecuador of 2014 (de manera sistemática

y generalizada).

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These 11 countries clearly go beyond even the arguably more expansive inter-

pretation of the ICC by clearly excluding the prosecution of “lone génocidaires,”

or potentially refusing to try a perpetrator who committed the underlying

offences with others who lacked genocidal intent.

Limiting the scope of application of the crime of genocide by omitting or

restricting underlying offences

The overwhelming majority of states that have implemented the crime of geno-

cide have criminalized all the ﬁve prohibited acts listed in the Genocide Conven-

tion. According to the survey of domestic criminal legislations, there are only

nine countries and the Special Administrative Region of Macao that omitted or

restricted underlying offences. Instead of prohibiting serious mental harm as set

out in Art. II(b) of the Genocide Convention, Bulgaria criminalizes causing

“permanent derangement of the consciousness of a person,”

which explicitly

contravenes the established jurisprudence of the ad hoc tribunals.

In a similar

fashion, the United States prohibits causing “the permanent impairment of the

mental faculties of members of the group.”

On the other hand, the Czech

Republic,

Georgia,

Guinea-Bissau,

Poland,

and the Special Administra-

tive Region of Macao

have completely omitted the mental harm requirement

by only criminalizing “serious bodily injury.”

Mexico changed the crime of “imposing measures intended to prevent births

within the group”–speciﬁed in Art. II(d) of the Genocide Convention –to

“imposing massive sterilizations with the aim to prevent the reproduction of

the group.”

Italy restricted the scope of application of Art. II(e) of the Con-

vention (“Forcibly transferring children of the group to another group”)by

53 Valerie Oosterveld and Charles Garraway, “The Elements of Genocide”in Roy S.K. Lee and

Hakan Friman (eds.) The International Criminal Court: Elements of Crimes and Rules of Pro-

cedure and Evidence (Ardsley: Transnational, 2001) 41–57, at 47–8.

54 Art. 416 of the Criminal Code of the Republic of Bulgaria of 1968.

55 Prosecutor v. Krstić, Case No. IT-97-24-T, Judgment of 31 July 2003, para. 513. In the Ser-

omba case the ICTR declared that “to support a conviction for genocide, the bodily or the

mental harm inﬂicted on members of a group must be of such a serious nature as to threaten

its destruction in whole or in part.”Prosecutor v Seromba, Case No. ICTR-2001-66-A, Judg-

ment of 12 March 2008, para. 46.

56 Section 1091(a)(3) of the US Code –18. Crimes and Criminal Procedure of 1948.

57 Art. 400(1)(c) of the Criminal Code of the Czech Republic of 2009.

58 Art. 407 of the Criminal Code of Georgia of 1999.

59 Art. 101(1)(a) of the Criminal Code of Guinea-Bissau of 1993 (Homicídio ou ofensa à integ-

ridade física grave de elementos do grupo).

60 Art. 118(1) of the Criminal Code of the Republic of Poland of 1997.

61 Art. 230(b) of the Criminal Code of the Special Administrative Region of Macao of 1995

(praticar ofensa grave à integridade física de membros do grupo).

62 Art. 149-Bis of the Federal Criminal Code of the Republic of Mexico of 1931 (impusiese la

esterilización masiva).

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specifying that it applies only to “minors until the age of 14.”

Finally,

Mozambique deﬁned genocide as “deliberate killing motivated by ethnic,

national, racial or religious differences,”

which excludes every other underlying

offence besides killing members of the group.

Alterations that do not necessarily expand or restrict the scope of

application of the crime of genocide

‘Over-deﬁnition’of protected groups

Some countries seemingly expand the list of protected groups, but these add-

itions do not actually result in a different scope of application. The Austrian

Criminal Code deﬁnes genocide as acts committed against a “group determined

by belonging to a church or religious community, to a race, an ethnic group,

a tribe or a state.”

Even though in this deﬁnition –and the identical deﬁnition

in the Criminal Code of Liechtenstein

–the terms “church”and especially

“tribe”seem to be expansive, they only serve to further specify the protected

religious and ethnic groups.

Similarly, the terms “colour”and “nationality”in

Ethiopian legislation only further emphasize the protection of racial and ethnic

groups.

Finally, the US federal criminal law deﬁnition prosecuting perpetrators for

committing acts “with the speciﬁc intent to destroy, in whole or in substantial

part”conforms to customary international law standards.

63 Art. 5 of the Law No. 962 on the Prevention and Punishment of the Crime of Genocide of

9 October 1967 of the Republic of Italy (minori degli anni quattordici).

64 Art. 160(2)(j) of the Criminal Code of the Republic of Mozambique of 2014 (genocídio,

quando o agente pratica assassinato deliberado a pessoas motivada por diferenças étnicas, nacio-

nalidades, raciais ou religiosas).

65 Art. 321 of the Criminal Code of the Republic of Austria of 1974 (Zugehörigkeit zu einer

Kirche oder Religionsgesellschaft, zu einer Rasse, einem Volk, einem Volksstamm oder einem

Staat).

66 Art. 321 of the Criminal Code of the Principality of Liechtenstein of 1987.

67 Ferdinandusse, however, interpreted the inclusion of the term “tribe”as extending the cat-

egory of protected groups. See Walt Ferdinandusse, Direct Application of International

Criminal Law in National Courts (The Hague: TMC Asser, 2006) 24, fn. 118.

68 Art. 269 of the Criminal Code of the Federal Democratic Republic of Ethiopia of 2004.

69 See, for example, Benjamin Whitaker, Revised and Updated Report on the Question of the Pre-

vention and Punishment of the Crime of Genocide, UN Doc. E/CN.4/Sub.2/1985/6, 16,

para. 29; Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment of

21 May 1999, para. 97; Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, Judgment of

7 June 2001, para. 64. Nevertheless, the actual determination of whether the intent was to

destroy a “substantial”or “signiﬁcant”part of the protected group inevitably depends on the

circumstances as “the perpetrator’s genocidal intent will always be limited by the opportunity

presented to him.”Prosecutor v. Krstić, Case No. IT-98-33-A, Judgment of 19 April 2004.,

para. 13.

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Specifying the underlying offences

KILLING MEMBERS OF THE GROUP

Killing members of a protected group is the most obvious modality of genocide,

which can be committed by intentionally causing death.

However, the plural

form could potentially imply that the perpetrator has to kill at least two mem-

bers of the protected group to be found responsible. This could theoretically

result in the absurd outcome of genocide without génocidaires; i.e. if every killer

takes only the life of a single victim. Accordingly, the consistent jurisprudence

of the ICTR clearly proves that the requirement is fulﬁlled if a single member of

the group is killed,

and that view enjoys scholarly consensus.

This approach

is further reinforced by the ICC Elements of Crimes, which requires that “[T]

he perpetrator (killed etc) one or more persons.”

Consequently, deﬁning the prohibited act as the killing of even one individ-

ual –which can be found in the domestic legislation of the Dominican

Republic,

Fiji,

Germany,

Italy,

and Uruguay

–is in line with the inter-

nationally supported interpretation of the offence. Moreover, Albania,

France,

and Uruguay

prohibit “intentional killing.”This is also in conform-

ity with the jurisprudence of the ICTY establishing that the act of killing has to

be intentional, albeit not necessarily premeditated.

70 Art. 6(a)(1), fn. 2., ICC Elements of Crimes. The Kayishema Appeals Chamber emphasized

that it is “intentional but not necessarily premeditated murder.”Prosecutor v. Kayishema,

Case No. ICTR-95-A, Judgment of 1 June 2001, para. 151.

71 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998, para. 588.

72 See, for example, Werle, supra note 36, 265; Schabas, Genocide in International Law,supra note

28, 179. However, Ambos argues that the lex stricta rule of interpretation enshrined in Art. 22(2)

of the ICC Statute calls for at least two victims. Kai Ambos, Treatise on International Criminal

Law –Vol. II: The Crimes and Sentencing (Oxford: Oxford University Press, 2014) 10.

73 Art. 6(a)(1), ICC Elements of Crimes.

74 Art. 89(1) of the Criminal Code of the Dominican Republic of 2014 (killing of one or more

members of the group).

75 Art. 77(a) of Crimes Decree of 2009 of the Republic of Fiji Islands (the perpetrator causes

the death of one or more persons).

76 German Code of Crimes against International Law of 2002 (ein Mitglied der Gruppe tötet).

77 Art. 3 of Law No. 962 on the Prevention and Punishment of the Crime of Genocide of

9 October 1967 of the Republic of Italy (la morte di una o piu’persone).

78 Art. 16(A) of the Law on Cooperation with the International Criminal Court in the Fight

against Genocide, War Crimes and Crimes against Humanity of the Republic of Uruguay of

2006 (homicidio intencional de una o más personas del grupo).

79 Criminal Code of the Republic of Albania of 1995.

80 Art. 211(1) of the Criminal Code of the Republic of France of 1992 (atteinte volontaire à la vie).

81 Art. 16(A) of the Law on Cooperation with the International Criminal Court in the Fight

against Genocide, War Crimes and Crimes against Humanity of the Republic of Uruguay of

2006 (homicidio intencional de una o más personas del grupo).

82 See, for example, Prosecutor v. Stakić, Case No. IT-97-24-T, Judgment of 31 July 2003,

para. 515.

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CAUSING SERIOUS BODILY OR MENTAL HARM TO MEMBERS OF THE GROUP

While genocide is clearly not conﬁned only to killing members of a protected

group, the exact acts which constitute the underlying offence of “causing serious

bodily or mental harm”cannot be determined easily, even though the jurispru-

dence of the ad hoc tribunals has provided certain yardsticks. The ad hoc tribu-

nals emphasized that the harm must go “beyond temporary unhappiness,

embarrassment or humiliation,”and result “in a grave and long-term disadvan-

tage to a person’s ability to lead a normal and constructive life.”

While the

harm “must be of such serious nature as to threaten [the group’s] destruction

in whole or in part,”“it does not necessarily have to be permanent or irremedi-

able, and …it includes non-mortal.”

Consequently, a wide range of acts could potentially fall under this category.

Even though these acts could also constitute crimes against humanity and war

crimes, if committed with genocidal intent against members of a protected

group they would constitute genocide. The District Court of Jerusalem thus

listed

enslavement, starvation, deportation and persecution, conﬁnement to ghet-

tos, to transit camps and to concentration camps –all this under conditions

intended to humiliate the Jews, to deny their rights as human beings, to

suppress and torment them by inhuman suffering and torture.

The KaradžićTrial Chamber speciﬁed similar conduct, although emphasizing

that the determination of these acts is context-dependent. It included

torture, inhumane or degrading treatment, sexual violence including rape,

interrogations combined with beatings, threats of death, and harm that

damages health or causes disﬁgurement or serious injury to the external or

internal organs of members of the group. While forcible transfer does not

of itself constitute an act of genocide, depending on the circumstances of

a given case it may cause such serious bodily or mental harm as to consti-

tute an act of genocide under Article 4(2) (b).

83 Prosecutor v. Krstić, Case No. IT-97-24-T, Judgment of 31 July 2003, para. 513.

84 Prosecutor v. Kamuhanda, Case No. ICTR-95-54A-T, Judgment of 22 January 2004, paras.

633–634.

85 Israeli Government Prosecutor General v. Adolph Eichmann, Jerusalem District Court, Crim-

inal Case No. 40/61, Judgment of 12 December 1961, para. 199.

86 Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Judgment of 24 March 2016,

para. 545. The StakićTrial Chamber underlined, however, that mere deportation cannot

automatically qualify as genocide since “[A] clear distinction must be drawn between physical

destruction and mere dissolution of a group.”Prosecutor v. Stakić, Case No. IT-97-24-T,

Judgment of 31 July 2003, para. 519.

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This approach was reafﬁrmed in the ICC Elements of Crimes, stating that “[T]

his conduct may include, but is not necessarily restricted to, acts of torture,

rape, sexual violence or inhuman or degrading treatment,”

as well as the

Bosnia Genocide Judgment of the International Court of Justice, which found

that acts of sexual violence committed with the requisite speciﬁc intent could

constitute serious bodily or mental harm.

In light of the above it is hardly surprising that national implementation of

this particular actus reus displays remarkable variety. Three countries only made

slight changes in the terminology. The Criminal Code of Russia

and

Turkmenistan

contain identical provisions which criminalize “grave injury to

health”but do not mention mental health speciﬁcally, while Mexican legislation

prohibits “attacks against the bodily integrity or health.”

On the other hand,

17 countries have introduced speciﬁc prohibited acts falling within the scope of

“causing serious bodily and mental harm.”

Fourteen countries criminalize the forced removal of protected groups, including

Andorra (“forced deportation”),

Cabo Verde

and Italy

(“deportation”), Côte

d’Ivoire (“displacement or forced dispersion of the population or children”),

Nicaragua

and Spain

(“forcible displacement”), the Dominican Republic

and

Panama

(“forcible displacement and forcible transfer”), El Salvador (“violent

displacement”),

100

Ethiopia (“compulsory movement or dispersion of people”),

101

87 Art. 6(b)(1), fn. 3, ICC Elements of Crimes.

88 Case concerning the Application of the Convention on the Prevention and Punishment of the

Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia [Serbia and Montenegro]), Judg-

ment of 26 February 2007, para. 319.

89 Art. 357 of the Criminal Code of the Russian Federation of 1996.

90 Art. 168(1) of the Criminal Code of Turkmenistan of 1997.

91 Art. 149-Bis of the Federal Criminal Code of the Republic of Mexico of 1931 (ataques a la

integridad corporal o a la salud).

92 Art. 456(1)(c) of the Criminal Code of the Principality of Andorra of 2005 (déportation

forcée de tous ou d’une partie des membres du groupe en question).

93 Art. 268(b) of the Criminal Code of the Republic of Cabo Verde of 2003 (deportação).

94 Art. 2 of the Law No. 962 on the Prevention and Punishment of the Crime of Genocide of

9 October 1967 (deporta persone).

95 Art. 137(3) of the Criminal Code of Côte d’Ivoire of 1981 (le déplacement ou la dispersion

forcés de populations ou d’enfants).

96 Art. 484(d) of the Criminal Code of the Republic of Nicaragua of 2007 (desplazamientos

forzosos).

97 Art. 607(1)(4) of the Criminal Code of the Kingdom of Spain of 1995 (desplazamientos

forzosos).

98 Art. 89(6) of the Criminal Code of the Dominican Republic of 2004 (llevar a cabo desplaza-

mientos forzosos del grupo o de sus miembros, o trasladar por la fuerza a miembros de un grupo

a otro).

99 Art. 440(6–7) of the Criminal Code of the Republic of Panama of 2007 (trasladar por la

fuerza a los miembros de un grupo a otro; desplazar forzosamente al grupo o a sus miembros).

100 Art. 361 of the Criminal Code of the Republic of El Salvador of 1997 (realizare el desplaza-

miento violento de personas hacia otros grupos).

101 Art. 269(c) of the Criminal Code of the Federal Democratic Republic Ethiopia of 2004.

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Guinea-Bissau (“violent separation of members of the group to another

group”),

102

Paraguay (“forcing the dispersion of the community”),

103

Russia (“for-

cible resettlement”),

104

and Timor-Leste (“Violent separation of members of the

group to another group”;“Acts that violently prevent a group to settle down or

remain in a geographical area which it traditionally recognized as its own”).

105

Different forms of sexual violence are included in the criminal legislation of nine

states: Andorra (“sexual aggression”),

106

the Dominican Republic

107

and Spain

108

(“sexual assault”), Colombia (“forced pregnancy”),

109

Fiji (“rape and sexual

violence”),

110

Nicaragua (“attack against sexual integrity”),

111

Panama (“abuse

against sexual freedom”),

112

Timor-Leste (“Rape, sexual slavery, enforced prostitu-

tion, forced pregnancy, forced sterilization or any other form of sexual violence of

a comparable gravity”),

113

and Uruguay (“sexual aggression and forced

pregnancy”).

114

Torture, inhuman and degrading treatment is criminalized by ﬁve countries:

Cabo Verde,

115

Andorra,

116

Fiji,

117

Lithuania,

118

and Uruguay.

119

Different

102 Art. 101(1)(c) of the Criminal Code of Guinea-Bissau of 1993 (separação por meios violentos

de elementos do grupo para outro grupo).

103 Art. 319(6) of the Criminal Code of the Republic of Paraguay of 1997 (forzara a la disper-

sión de la comunidad).

104 Art. 357 of the Criminal Code of the Russian Federation of 1996.

105 Art. 123(1)(d-e) of the Criminal Code of the Republic of Timor-Leste of 2009 (separação

por meios violentos de elementos do grupo para outro grupo; Actos que por forma violenta impe-

çam o grupo de se instalar ou manter em espaço geográﬁco que por tradiçăo ou historicamente

lhe sejam reconhecidos).

106 Art. 456(1)(g) of the Criminal Code of the Principality of Andorra of 2005 (agression sexuelle).

107 Art. 89(6) of the Criminal Code of the Dominican Republic of 2004 (agredir sexualmente

a cualquiera de los miembros del grupo).

108 Art. 607(1)(2) of the Criminal Code of the Kingdom of Spain of 1995 (agredieran

sexualmente).

109 Art. 101(2) of the Criminal Code of Colombia of 2000 (embarazo forzado).

110 Art. 78(2) of the Crimes Decree of 2009 of the Republic of Fiji Islands.

111 Art. 484(a) of the Criminal Code of the Republic of Nicaragua of 2007 (attentar contra la

integridad sexual).

112 Art. 440(4) of the Criminal Code of the Republic of Panama of 2007 (abuso contra la liber-

tad sexual).

113 Art. 123(1)(c) of the Criminal Code of the Republic of Timor-Leste of 2009 (violação,

escravidão sexual, prostituição forçada, gravidez forçada, esterilização forçada ou qualquer

outra forma de violência sexual de gravidade comparável).

114 Art. 16(B) of the Law on Cooperation with the International Criminal Court in the Fight

against Genocide, War Crimes and Crimes against Humanity of the Republic of Uruguay of

2006 (agresión sexual, embarazo forzoso).

115 Art. 268(c) of the Criminal Code of the Republic of Cabo Verde of 2003 (maciças de tor-

tura ou tratamentos cruéis, degradantes e desumanos).

116 Art. 456(1)(f) of the Criminal Code of the Principality of Andorra of 2005 (traitements

inhumains ou dégradants).

117 Art. 78(2) of the Crimes Decree of 2009 of the Republic of Fiji Islands.

118 Art. 99 of the Criminal Code of the Republic of Lithuania of 2000.

119 Art. 16(B) of the Law on Cooperation with the International Criminal Court in the Fight

against Genocide, War Crimes and Crimes against Humanity of the Republic of Uruguay of

2006.

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forms of deprivation of liberty are criminalized by Andorra (“enslavement of the

group in whole or in part”),

120

Cabo Verde (enslavement),

121

Nicaragua

(“attack against liberty”),

122

and Uruguay (“deprivation of liberty”).

123

“Enforced disappearance”is listed in the criminal codes of Cabo Verde

124

and

Andorra.

125

Guinea-Bissau

126

and Timor-Leste

127

criminalize “[D]issemination

of an epidemic likely to cause death or serious harm to the physical integrity of

the members of the group.”Finally, the Commonwealth of Dominica punishes

“the use of any biological or microbial agent or toxin, or of any weapon, equip-

ment or means of delivery designed to use biological or microbial agents, which

has no justiﬁcation for prophylactic protective or other peaceful purposes.”

128

DELIBERATELY INFLICTING ON THE GROUP CONDITIONS OF LIFE CALCULATED TO

BRING ABOUT ITS PHYSICAL DESTRUCTION IN WHOLE OR IN PART

The Akayesu Trial Chamber construed measures which aim to inﬂict on the

group conditions of life calculated to bring about its physical destruction in

whole or part as “methods of destruction by which the perpetrator does not

immediately kill the members of the group, but which, ultimately, seek their

physical destruction.”

129

Such acts can

include, but are not limited to, subjecting the group to a subsistence diet; failing

to provide adequate medical care; systematically expelling members of the group

from their homes; and generally creating circumstances that would lead to

a slow death, such as the lack of proper food, water, shelter, clothing, sanitation,

or subjecting members of the group to excessive work or physical exertion.

130

120 Art. 456(1)(f) of the Criminal Code of the Principality of Andorra of 2005 (réduction de la

totalité ou de partie du groupe à l’esclavage).

121 Art. 268(b) of the Criminal Code of the Republic of Cabo Verde of 2003 (redução à

escravidão).

122 Art. 484(b) of the Criminal Code of the Republic of Nicaragua of 2007 (atentar contra la

libertad).

123 Art. 16 of the Law on Cooperation with the International Criminal Court in the Fight

against Genocide, War Crimes and Crimes against Humanity of the Republic of Uruguay of

2006 (privación de libertad).

124 Art. 268(b) of the Criminal Code of the Republic of Cabo Verde of 2003 (sequestro seguido

de desaparecimento).

125 Art. 456(1)(b) (séquestration de membres du groupe en question, suivie de leur disparition).

126 Art. 101(1)(g) of the Criminal Code of Guinea-Bissau of 1993 (difusão de epidemia susceptí-

vel de causar a morte ou ofensas graves à integridade física de elementos do grupo).

127 Art. 123(1)(i) of the Criminal Code of the Republic of Timor-Leste of 2009 (difusăo de epi-

demia susceptível de causar a morte ou ofensas a integridade física de elementos do grupo).

128 Act 20 of 1969 to Give Effect to the Convention on the Prevention and Punishment of the

Crime of Genocide.

129 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment of 2 September 1998, para. 518.

130 Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Judgement of 24 March 2016,

para. 547.

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Depending on the circumstances, deportation

131

or forcible transfer of civilians

could also fall into this category.

132

The ICC Elements of Crimes restates this

approach by stating that the “term ‘conditions of life’may include, but is not

necessarily restricted to, deliberate deprivation of resources indispensable for sur-

vival, such as food or medical services, or systematic expulsion from homes.”

133

Numerous countries follow this approach. Fiji implemented almost verbatim

the ICC Elements of Crimes deﬁnition (“‘conditions of life’includes, but is not

limited to, intentional deprivation of resources indispensable for survival, such as

deprivation of food or medical services, or systematic expulsion from

homes.”);

134

Panama,

135

Spain,

136

and Uruguay

137

include conditions that “ser-

iously affect health”; Bolivia includes “inhuman survival conditions”;

138

and Uru-

guay also includes “systematic expulsion from their homes.”

139

Finally, Guinea-

Bissau

140

and Timor-Leste

141

add the “[p]rohibition, omission or impediment by

any means of the provision of humanitarian assistance to the members of the

group required to combat situations of epidemic or serious food shortage.”

IMPOSING MEASURES INTENDED TO PREVENT BIRTHS WITHIN THE GROUP

The aim of measures intended to prevent birth within the protected group is

“denying the group the means of self-propagation.”

142

Such measures might

include “sexual mutilation, the practice of sterilization, forced birth control, sep-

aration of the sexes and prohibition of marriages”or forced impregnation “in

131 International Law Commission, Code of Crimes against the Peace and Security of Mankind,

UN Doc. A/51/332 (1996), 126.

132 Prosecutor v. Tolimir, IT-05–88/2-A, Judgment of 6 April 2015, para. 209.

133 Art. 6(c), fn. 4, ICC Elements of Crimes.

134 Art. 79(2) of the Crimes Decree of 2009 of the Republic of Fiji Islands.

135 Art. 440 of the Criminal Code of the Republic of Panama of 2007 (perturben gravemente la

salud).

136 Art. 607(1)(3) of the Criminal Code of the Kingdom of Spain of 1995 (perturben grave-

mente su salud).

137 Art. 16(C) of the Law on Cooperation with the International Criminal Court in the Fight

against Genocide, War Crimes and Crimes against Humanity of the Republic of Uruguay of

2006 (una perturbación grave de salud).

138 Art. 138 of the Criminal Code of the Plurinational State of Bolivia of 1972 (condiciones de

inhumana subsistencia).

139 Art. 16(C) of the Law on Cooperation with the International Criminal Court in the Fight

against Genocide, War Crimes and Crimes against Humanity of the Republic of Uruguay of

2006 (la expulsión sistemática de sus hogares).

140 Art. 101(1)(h) of the Criminal Code of Guinea-Bissau of 1993 (proibição, omissão ou impe-

dimento por qualquer meio a que seja prestada assistência humanitária aos elementos do

grupo, adequada a combater situações de epidemia ou de grave carência alimentar).

141 Art. 123(1)(j) of the Criminal Code of the Republic of Timor-Leste of 2009 (proibiçăo,

omissăo ou impedimento por qualquer meio a que seja prestada aos elementos do grupo assistęn-

cia humanitária adequada a combater situaçőes de epidemia ou de grave caręncia

alimentar).

142 Ambos, Treatise on International Criminal Law –Vol. II,supra note 71, 14.

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patriarchal societies, where membership of a group is determined by the identity

of the father.”

143

Other measures which prevent birth through their psychological

effects could also fall into this category. The Akayesu judgment stressed that

rape can be a measure intended to prevent births when the person raped

refuses subsequently to procreate, in the same way that members of a group

can be led, through threats or trauma, not to procreate.

144

Based on the above, depending on the circumstances most acts causing the serious

bodily or mental harm speciﬁed in the section “Causing serious bodily or mental

harm to members of the group”above could potentially be classiﬁed as measures

intended to prevent birth, especially forms of sexual violence and torture, and

inhuman and degrading treatment. Still, the Criminal Code of Afghanistan speciﬁc-

ally complements the underlying offence with measures preventing procreation,

which does not seem to change the scope of application of the actus reus.

145

FORCIBLY TRANSFERRING CHILDREN OF THE GROUP TO ANOTHER GROUP

The aim of the crime of forcibly transferring children of a protected group to

another group is to eradicate the children’s attachment to their original group

and thus the long-term destruction of the group in a non-physical form. The

ICC Elements of Crimes deﬁnes the term “children”as persons under the age

of 18 years

146

and indicates that the term “forcibly”is

not restricted to physical force, but may include threat of force or coercion,

such as that caused by fear of violence, duress, detention, psychological

oppression or abuse of power, against such person or persons or another

person, or by taking advantage of a coercive environment.

147

Accordingly, the Criminal Code of Austria

148

and Liechtenstein

149

both stipu-

late that this form of genocide can be committed “with violence or with threat

of violence.”

143 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment of 2 September 1998, para.

507–508. As regards sterilization and castration as forms of genocide, see Poland v. Hoess

(Supreme National Tribunal of Poland), 7 Law Reports of Trials of War Criminals 11

(1948) 25.

144 Ibid.

145 Afghanistan, Art. 333 of the Criminal Code of the Islamic Republic of Afghanistan of 2017.

In both the Dari and Pashto language versions.

146 Art. 6(e)(5), ICC Elements of Crimes

147 Art. 6(e)(1), fn. 5, ICC Elements of Crimes

148 Art. 321(1) of the Criminal Code of the Republic of Austria of 1974 (mit Gewalt oder durch

Drohung mit Gewalt).

149 Art. 321(1) of the Criminal Code of the Principality of Liechtenstein of 1987.

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In their domestic legislation, Mexico

150

and Chile

151

explicitly stipulate that

the crime can be committed against “minors under the age of 18,”with Chile

adding also the crime of “preventing them from returning.”

152

Nicaragua imple-

mented in its act “displacing with violence the boys, girls and adolescents of the

group.”

153

Bolivia,

154

Ecuador,

155

Guatemala,

156

and Paraguay

157

all prohibit the for-

cible transfer of both “children and adults,”and Paraguay also criminalizes

transferring children and adults “to places different from their habitual

residence,”

158

while Uruguay punishes “displacement of the group from the

place it is located.”

159

These latter regulations clearly go beyond the scope of

the underlying offence of forcibly transferring children of a group to another

group. However, depending on the circumstances they can still constitute “caus-

ing serious bodily or mental harm to members of the group”or “deliberately

inﬂicting on the group conditions of life calculated to bring about its physical

destruction in whole or in part,”so these regulations do not necessarily have to

be viewed as expanding the scope of application of the crime of genocide in

domestic law.

Expanding the scope of application of the crime of genocide

Expanding the scope of application of the crime of genocide by including

additional protected groups

The closed list of groups of people protected by the Genocide Convention has

been a source of contention ever since the adoption of the Convention. Already

during the drafting process numerous countries suggested the inclusion of other

groups, especially political and social ones, but these proposals were ultimately

150 Art. 149-Bis of the Federal Criminal Code of the Republic of Mexico of 1931 (se traslada-

ren de ellas a otros grupos menores de dieciocho años).

151 Art. 11 (5) of the Law No. 20.357 of 18 July 2009 (trasladar por fuerza a menores de 18

años del grupo a otro grupo)

152 Ibid. (se les impida regresar a aquél).

153 Art. 484(d) of the Criminal Code of the Republic of Nicaragua of 2007 (desplazar con vio-

lencia a los niños, niñas o adolescentes del grupo).

154 Art. 138 of the Criminal Code of the Plurinational State of Bolivia of 1972 (realizare con

violencia el desplazamiento de niños o adultos hacia otros grupos).

155 Art. 79(5) of the Criminal Code of the Republic of Ecuador of 2014 (traslado forzado de

niñas, niños o adolescentes, de un grupo a otro).

156 Art. 376(4) of the Criminal Code of the Republic of Guatemala of 1973 (desplazamiento

compulsivo de niños o adultos del grupo, a otro grupo).

157 Art. 319(3) of the Criminal Code of the Republic of Paraguay of 1997 (trasladara, por

fuerza o intimidación a niños o adultos hacia otros grupos).

158 Ibid. (lugares ajenos a los de su domicilio habitual).

159 Art. 16(e) of the Law on Cooperation with the International Criminal Court in the Fight

against Genocide, War Crimes and Crimes against Humanity of the Republic of Uruguay of

2006 (el desplazamiento del grupo del lugar donde está asentado).

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rejected.

160

Nevertheless, the expansion of the list of protected groups enjoys

considerable academic support.

161

A signiﬁcant part of the international community –i.e. 34 countries –have

decided to expand the scope of their domestic genocide legislation beyond the

enumerated groups by incorporating speciﬁc groups beyond the closed enumer-

ation of the Genocide Convention. The most common addition is to include

political groups, with 13 countries belonging to this category, including:

Colombia,

162

Bangladesh,

163

Costa Rica,

164

Côte d’Ivoire,

165

Ecuador,

166

Ethiopia,

167

Lithuania,

168

Nicaragua,

169

Panama,

170

Poland,

171

Switzerland,

172

Togo,

173

and Uruguay.

174

Social groups are included in the criminal legislation

of Paraguay,

175

Estonia,

176

São Tomé and Príncipe,

177

Switzerland,

178

Peru,

179

and the Philippines.

180

Besides political and social groups, some states have opted to introduce other

speciﬁc protected groups as well. Thus the Czech Republic criminalizes under-

lying offences against people belonging to a class,

181

Estonia prosecutes crimes

160 See Schabas, Genocide in International Law,supra note 28, 153–171.

161 See, for example, Pieter N. Drost, The Crime of State: Genocide (The Hague: A.W. Sythoff,

1950) 62; Beth van Schaack, “The Crime of Political Genocide: Repairing the Genocide

Convention’s Blind Spot”106 (1997) The Yale Law Journal 2259–2291; Elisa Novic, The

Concept of Cultural Genocide: An International Law Perspective (Oxford: Oxford University

Press, 2016).

162 Art. 101 of the Criminal Code of the Republic of Colombia of 2000.

163 Art. 3(2)(c) of International Crimes (Tribunals) Act 1973 (Bangladesh).

164 Art. 382 of the Criminal Code of Costa Rica of 1998.

165 Art. 137 of the Criminal Code of Côte d’Ivoire of 1981.

166 Art. 79 of the Criminal Code of the Republic of Ecuador of 2014.

167 Art. 269 of the Criminal Code of the Federal Democratic Republic of Ethiopia of 2004.

168 Art. 99 of the Criminal Code of the Republic of Lithuania.

169 Art. 484 of the Criminal Code of the Republic of Nicaragua of 2007.

170 Art. 440 of the Criminal Code of the Republic of Panama of 2007. Interestingly, the Code

simply lists it as one of the Crimes against the International Law of Human Rights (Delitos

contra el Derecho Internacional de los Derechos Humanos) without specifying the term

“genocide.”

171 Art. 118 of the Criminal Code of the Republic of Poland of 1997.

172 Art. 264 of the Criminal Code of the Swiss Confederation of 1937.

173 Art. 143 of the Criminal Code of the Togolese Republic of 2015.

174 Art. 16 of the Law on Cooperation with the International Criminal Court in the Fight

against Genocide, War Crimes and Crimes against Humanity of the Republic of Uruguay of

2006.

175 Art. 319 of the Criminal Code of the Republic of Paraguay of 1997.

176 Art. 90 of the Criminal Code of the Republic of Estonia of 2001.

177 Art. 210 of the Criminal Code of 2012 of the Democratic Republic of São Tomé and

Principe.

178 Art. 264 of the Criminal Code of the Swiss Confederation of 1937.

179 Art. 319 of the Criminal Code of the Republic of Peru of 1991.

180 Art. 5 of the Act on Crimes against International Humanitarian Law, Genocide, and Other

Crimes against Humanity of 2009.

181 Art. 400 of the Criminal Code of the Czech Republic of 2009.

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committed against “a group resisting occupation,”

182

Honduras criminalizes

offences against “ideological groups,”

183

and Poland extends protection to

groups with “a different perspective on life,”

184

while both Spain

185

and the

Dominican Republic

186

regard as genocide the commission of acts committed

against “a speciﬁc group determined by the disability of its members.”The

most expansive deﬁnition, however, can be found in the Criminal Code of Uru-

guay, which protects “political, syndical, and any other group identiﬁed by

reasons of gender, sexual orientation, cultural or social background, age, disabil-

ity or health.”

187

The criminal legislation of 16 countries has adopted an all-encompassing approach

that potentially extends to any identiﬁable group. Nine countries –Andorra,

188

Belarus,

189

Burkina Faso,

190

Cabo Verde,

191

the Central African Republic,

192

Chad,

193

Comoros,

194

France

195

and Niger

196

–use the wording “group determined

by any arbitrary criterion.”Canada includes “an identiﬁable group of persons,”

197

182 Art. 90 of the Criminal Code of the Republic of Estonia of 2001.

183 Art. 143 of the Criminal Code of the Republic of Honduras of 2019.

184 Art. 118 of the Criminal Code of the Republic of Poland of 1997.

185 Art. 607 of the Criminal Code of the Kingdom of Spain of 1995.

186 Art. 89 of the Criminal Code of the Dominican Republic of 2014.

187 Art. 16 of the Law on Cooperation with the International Criminal Court in the Fight

against Genocide, War Crimes and Crimes against Humanity of the Republic of Uruguay of

2006.

188 Art. 456 of the Criminal Code of the Principality of Andorra of 2005 (groupe déterminé à

partir de tout autre critère arbitraire).

189 Art. 127 of the Criminal Code of the Republic of Belarus of 1999.

190 Art. 421–1 of the Criminal Code of Burkina Faso of 2019 (groupe déterminé à partir de tout

autre critère arbitraire).

191 Art. 268 of the Criminal Code of the Republic of Cabo Verde of 2003 (outro, determinado

a partir de qualquer critério arbitrário).

192 Art. 152 of the Criminal Code of the Central African Republic of 2010 (groupe déterminé à

partir de tout autre critère arbitraire).

193 Art. 296 of the Penal Code of the Republic of Chad of 2017 (groupe déterminé à partir de

tout autre critère arbitraire).

194 Art. 17 of Decree N° 12-022/PR, promulgating law No. 11–022 of 2011 on the Imple-

mentation of the Rome Statute (groupe déterminé à partir de tout autre critère arbitraire).

195 Art. 211(1) of the Criminal Code of the Republic of France of 1992 (groupe déterminé à

partir de tout autre critère arbitraire).

196 Art. 208(1) of the Criminal Code of the Republic of Niger of 2003 (groupe déterminé à

partir de tout autre critère arbitraire).

197 Section 4(3) of the Crimes against Humanity and War Crimes Act of 2000. However, the

law proceeds by deﬁning the crime as which “at the time and in the place of its commission,

constitutes genocide according to customary international law or conventional international

law or by virtue of its being criminal according to the general principles of law recognized

by the community of nations.”Consequently, it seems that despite the confusing language,

the Canadian legislator did not intend to expand the scope of protected groups. Still, the

Canadian Criminal Code for the purpose of prosecuting incitement to genocide also deﬁnes

genocide as a crime that can be committed against “an identiﬁable group of persons.”Art.

318 of the Criminal Code of Canada of 1985.

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the Czech Republic “other similar groups of people,”

198

Finland “another compar-

able group,”

199

Georgia “members of which are united …by any other signs,”

200

Lesotho “any other identiﬁable group,”

201

the Philippines “any other similar stable

group,”

202

and Senegal groups “determined by any other criterion.”

203

Finally, the Ethiopian Criminal Code not only protects groups but also

nations,

204

so presumably a military action threatening the existence of another

state could qualify as genocide.

Expanding the scope of application of the crime of genocide by abolishing the

special-intent requirement

The special- or speciﬁc-intent requirement for the crime of genocide is one of its

deﬁning features. In the words of the KirstićTrial Chamber, it is a crime “charac-

terised and distinguished by a ‘surplus’of intent.”

205

Unsurprisingly, the survey

only found one country –Mozambique –that categorically dispensed with the

mens rea requirement.

206

The Mozambique Criminal Code regulates genocide as

one of the speciﬁc forms of “heinous crimes,”along with extermination, terror-

ism, and the rape of minors under the age of 12, and deﬁnes it as “deliberate kill-

ing motivated by ethnic, national, racial or religious differences.”

207

Consequently, this legislation only requires a discriminatory intent, but not an

intent to destroy the protected group, on the part of the perpetrator.

Expanding the scope of application of the crime of genocide by the omission of

“as such”

The words “as such”do not seem to have an important role in the deﬁnition of

genocide and indeed it has been suggested that they could be omitted without

entailing any consequences for the interpretation of the crime.

208

However,

198 Art. 400(1)(c) of the Criminal Code of the Czech Republic of 2009.

199 Chapter 11, Section 1 of the Criminal Code of the Republic of Finland of 1889.

200 Art. 407 of the Criminal Code of Georgia of 1999.

201 Art. 93 of the Criminal Code of the Kingdom of Lesotho of 2012.

202 Art. 5 of the Act on Crimes against International Humanitarian Law, Genocide, and Other

Crimes against Humanity of 2009.

203 Art. 431 (1) of the Criminal Code of 1965 (déterminé à partir de tout autre critère).

204 Art. 269 of the Criminal Code of the Federal Democratic Republic Ethiopia of 2004.

205 Prosecutor v. Krstić, Case No. IT-97-24-T, Judgment of 31 July 2003, para. 520.

206 Bekou claims that the genocide deﬁnitions in French and Burkina Faso criminal law abol-

ished the special-intent requirement but that seems unfounded as both legislations speciﬁc-

ally require the intent to destroy. Olympia Bekou, “Crimes at Crossroads –Incorporating

International Crimes at the National Level”10 (2012) Journal of International Criminal

Justice 677–691, at 683.

207 Art. 160 (2) (j) of the Criminal Code of the Republic of Mozambique of 2014.

208 Dino Carlos Caro Coria, “Prosecuting International Crimes in Peru”10 (2010) Inter-

national Criminal Law Review 583–600, at 587.

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a perusal of the travaux préparatoires of the Genocide Convention reveals that

the term “as such”was originally intended by Venezuela to serve as a reference

to a racist or discriminatory intent.

209

Even though the perpetrator does not

necessarily have to be driven by racist motivations, this requirement ensures that

genocide can only be committed when “it is the group that has been targeted,

and not merely speciﬁc individuals within that group.”

210

Nevertheless, 66 countries –out of the total 138 countries that have imple-

mented the crime of genocide –have omitted the term “as such.”

211

209 Schabas, Genocide in International Law,supra note 28, 294–305. Schabas even submits

that “The organizers and planners must necessarily have a racist or discriminatory motive,

that is, a genocidal motive, taken as a whole. Where this is lacking, the crime cannot be

genocide.”Ibid., at 305.

210 Prosecutor v. Sikirica et al., Case No. IT-95-8-I, Judgment on Defence Motions to Acquit,

3 September 2001, para. 89. Ultimately, the ICTR emphasized that “the term ‘as such’

clariﬁes the speciﬁc intent requirement. It does not prohibit a conviction for genocide in

a case in which the perpetrator was also driven by other motivations that are legally irrelevant

in this context.”Prosecutor v. Niyitegeka, Case No. ICTR-96-14-A, Judgment of

9 July 2004, para. 49.

211 Afghanistan, Art. 333 of the Criminal Code of the Islamic Republic of Afghanistan of 2017;

Albania, Art. 73 of the Criminal Code of the Republic of Albania of 1995; Andorra, Art.

456 of the Criminal Code of the Principality of Andorra of 2005; Angola, Art 367 of the

Criminal Code of Angola of 2019; Armenia, Art. 393 of the Criminal Code of the Republic

of Armenia of 2003; Azerbaijan, Art. 103 of the Criminal Code of the Republic of Azerbai-

jan of 2000; Bangladesh, Section 3(2) (c) of the International Crimes (Tribunals) Act 1973

of the People’s Republic of Bangladesh; Belarus, Art. 127 of the Criminal Code of the

Republic of Belarus of 1999; Benin, Art. 463 of the Criminal Code of 2018; Bolivia, Art.

138 of the Criminal Code of the Plurinational State of Bolivia of 1972; Bosnia and Herze-

govina, Art. 171 of the Criminal Code of the Federation of Bosnia and Herzegovina of

2003; Bulgaria, Art. 416 of Criminal Code of the Republic of Bulgaria of 1968; Burkina

Faso, Art. 16 of Law No. 2009-52/AN of 3 December 2009, Implementing the Rome Stat-

ute of the International Criminal Court at Domestic Level; Cabo Verde, Criminal Code of

the Republic of Cabo Verde of 2003; Cambodia, Art. 183 of the Criminal Code of the

Kingdom of Cambodia of 2009; Canada, Section 4(3) of the Crimes against Humanity and

War Crimes Act of Canada of 2000 (French version); Central African Republic, Art. 152 of

the Criminal Code of the Central African Republic of 2010; Chad, Art. 296 of the Criminal

Code of the Republic of Chad of 2017; Republic of Congo, Art. 1 of the Law 8/98 of

31 October 1998 on the Deﬁnition and Repression of Genocide, War Crimes, and Crimes

against Humanity; Costa Rica, Art. 382 of the Criminal Code of Costa Rica of 1998; Côte

d’Ivoire, Art. 137 of the Criminal Code of Côte d’Ivoire of 1981; Czech Republic, Art. 400

of the Criminal Code of the Czech Republic of 2009; Dominican Republic, Art. 89 of the

Criminal Code of the Dominican Republic of 2004; Ecuador, Art. 79 of the Criminal Code

of the Republic of Ecuador of 2014; El Salvador, Art. 361 of the Criminal Code of the

Republic of El Salvador of 1997; Estonia, Art. 90 of the Criminal Code of the Republic of

Estonia of 2001; Ethiopia, Art. 269 of the Criminal Code of the Federal Democratic Repub-

lic of Ethiopia of 2004; Finland, Chapter 11, Section 1 of the Criminal Code of the Repub-

lic of Finland of 1889; France, Art. 211(1) of the Criminal Code of the Republic of France

of 1992; Georgia, Art. 407 of the Criminal Code of the Republic of Georgia of 1999; Gua-

temala, Art. 376 of the Criminal Code of the Republic of Guatemala of 1973; Guinea-

Bissau, Art. 101 of the Criminal Code of Guinea-Bissau of 1993; Holy See, Art. 14 of

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Interestingly, 21 of these countries have otherwise completely identical national

deﬁnitions to the internationally recognized deﬁnition of the crime.

212

This

potentially suggests that a considerable number of states might indeed regard

the term “as such”to be irrelevant for the application of the crime of genocide.

Expanding the scope of application of the crime of genocide by altering the

wording of underlying offences

The internationally recognized interpretation of certain forms of genocide is sig-

niﬁcantly broader than borne out by a simple textual interpretation; therefore,

a simple change in the wording does not necessarily result in expanding the

Vatican City State Law No. VIII, of 11 July 2013: Supplementary Norms on Criminal Law

Matters; Honduras, Art. 143 of the Criminal Code of the Republic of Honduras of 2019;

Hungary, Art. 142 of the Criminal Code of Hungary of 2012; Kazakhstan, Art. 168 of the

Criminal Code of the Republic of Kazakhstan of 2014; Kosovo, Art. 148 of the Criminal

Code of the Republic of Kosovo of 2012; Kyrgyzstan, Art. 383 of the 2017 Criminal Code

of the Kyrgyz Republic; Lesotho, Art. 93 of the Penal Code of the Kingdom of Lesotho of

2010; Lithuania, Art. 99 of the Criminal Code of the Republic of Lithuania of 2000;

Mexico, Art. 149-Bis of the Federal Criminal Code of the Republic of Mexico of 1931; Mol-

dova, Art. 135 of the Criminal Code of the Republic of Moldova of 2002; Montenegro, Art.

426 of the Criminal Code of Montenegro of 2003; Mozambique, Art. 160 of the Criminal

Code of the Republic of Mozambique of 2014; Nicaragua, Art. 484 of the Criminal Code

of the Republic of Nicaragua of 2007; Niger, Art. 208(1) of the Criminal Code of the

Republic of Niger of 2003; North Macedonia, Art. 403 of the Criminal Code of the Repub-

lic of Macedonia of 1996; Norway, Art. 101 of the Criminal Code of the Kingdom of

Norway of 2005; Panama, Art. 440 of the Criminal Code of the Republic of Panama of

2007; Paraguay, Art. 319 of the Criminal Code of the Republic of Paraguay of 1997; Peru,

Art. 319 of the Criminal Code of the Republic of Peru of 1991; Poland, Art. 118 of the

Criminal Code of the Republic of Poland of 1997; Republic of Korea, Art. 8 of Act No.

8719 of 2007 on the Punishment of Crimes Within the Jurisdiction of the International

Criminal Court; São Tomé and Príncipe, Art. 210 of the Criminal Code of the Democratic

Republic of São Tomé and Principe of 2012; Senegal, Art. 431(1) of the Criminal Code of

the Republic of Senegal of 1965; Slovakia, Art. 418 of the Criminal Code of the Slovak

Republic of 2005; Slovenia, Art. 100 of the Criminal Code of the Republic of Slovenia of

2008; Spain, Art. 607 of the Criminal Code of the Kingdom of Spain of 1995; Switzerland,

Art. 264 of the Criminal Code of the Swiss Federation of 1937; Tajikistan, Art. 398 of the

Criminal Code of the Republic of Tajikistan of 1998; Timor-Leste, Art. 123 of the Criminal

Code of the Republic of Timor-Leste of 2009; Togo, Art. 143 of the Criminal Code of the

Togolese Republic of 2015; Turkey, Art. 76 of the Criminal Code of the Republic of Turkey

of 2004; Ukraine, Art. 442 of the Criminal Code of Ukraine of 2001; Uruguay, Art. 16 of

the Law on Cooperation with the International Criminal Court in the Fight against Geno-

cide, War Crimes and Crimes against Humanity of the Republic of Uruguay of 2006;

Uzbekistan, Art. 153 of the Criminal Code of the Republic of Uzbekistan of 1994; Vietnam,

Art. 422 Criminal Code of the Socialist Republic of Viet Nam of 2015; Zimbabwe, Chapter

9:20 of the Genocide Act of the Republic of Zimbabwe of 2000.

212 Armenia, Azerbaijan, Benin, Bosnia and Herzegovina, Cambodia, Canada, Holy See, Kaz-

akhstan, Kosovo, Kirgizstan, Moldova, Montenegro, Northern Macedonia, Norway, Repub-

lic of Korea, Singapore, Slovakia, Slovenia, Tajikistan, Ukraine, and Zimbabwe.

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scope of application of the crime of genocide. Thus, the modality of “killing

members of the group”is fulﬁlled even by the intentional killing of only

one member of the group, and consequently most domestic changes only further

specify but do not actually change the scope of application.

213

The only real

change to this effect is the provision in the Criminal Code of Panama prohibiting

the “inducing of suicide.”

214

Correspondingly, due to the broad international

interpretation of the crime of “causing serious bodily or mental harm to members

of the group,”there is no national provision actually extending its application.

215

On the other hand, many states have substantially extended the actus reus

of “deliberately inﬂicting on the group conditions of life calculated to bring

about its physical destruction in whole or in part.”Thirty-one countries –

Andorra,

216

Angola,

217

Austria,

218

Costa Rica,

219

Côte d’Ivoire,

220

Czech

Republic,

221

the Dominican Republic,

222

El Salvador,

223

Estonia,

224

Ethiopia,

225

Finland,

226

France,

227

Germany,

228

Guinea-Bissau,

229

Hungary,

230

Italy,

231

Liechtenstein,

232

Lithuania,

233

Macao,

234

Nicaragua,

235

Niger,

236

Panama,

237

Paraguay,

238

Peru,

239

Poland,

240

Russia,

241

São Tomé and

213 See “Killing members of the group,”above.

214 Art. 440(2) of the Criminal Code of the Republic of Panama of 2007 (inducir al suicidio).

215 See above Section 2.2.2.2.

216 Art. 456(1)(d) of the Criminal Code of the Principality of Andorra of 2005.

217 Art 367(b) of the Criminal Code of Angola of 2019.

218 Art. 321(1) of the Criminal Code of the Republic of Austria of 1974.

219 Art. 382(2) of the Criminal Code of Costa Rica of 1998.

220 Art. 137(3) of the Criminal Code of Côte d’Ivoire of 1981.

221 Art. 400(1)(c) of the Criminal Code of the Czech Republic of 2009.

222 Art. 89(3) of the Criminal Code of the Dominican Republic of 2004.

223 Art. 361 of the Criminal Code of the Republic of El Salvador of 1997.

224 Art. 90(1) of the Criminal Code of the Republic of Estonia of 2001.

225 Art. 269(c) of the Criminal Code of the Federal Democratic Republic Ethiopia of 2004.

226 Chapter 11, Section 1(1)(3) of the Criminal Code of the Republic of Finland of 1889.

227 Art. 211(1) of the Criminal Code of the Republic of France of 1992.

228 Art. 6(3) of the German Code of Crimes against International Law of 2002.

229 Art. 101(d) of the Criminal Code of Guinea-Bissau of 1993 (sujeição do grupo a condições de

existência ou a tratamentos cruéis, degradantes ou desumanos, susceptíveis de virem a provocar

a sua destruição, total ou parcial).

230 Art. 142(1)(c) of the Criminal Code of Hungary of 2012.

231 Art. 4 of the Law No. 962 on the Prevention and Punishment of the Crime of Genocide of

9 October 1967 of the Republic of Italy.

232 Art. 321(1) of the Criminal Code of the Principality of Liechtenstein of 1987.

233 Art. 99 of the Criminal Code of the Republic of Lithuania of 2000.

234 Art. 230(c) of the Criminal Code of the Special Administrative Region of Macao of 1995.

235 Art. 484(c) of the Criminal Code of the Republic of Nicaragua of 2007.

236 Art. 208(1) of the Criminal Code of the Republic of Niger of 2003.

237 Art. 440(5) of the Criminal Code of the Republic of Panama of 2007.

238 Art. 319(2) of the Criminal Code of the Republic of Paraguay of 1997.

239 Art. 319(3) of the Criminal Code of the Republic of Peru of 1991.

240 Art. 118(2) of the Criminal Code of the Republic of Poland of 1997.

241 Art. 357 of the Criminal Code of the Russian Federation of 1996.

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Príncipe,

242

Spain,

243

Switzerland,

244

Timor-Leste,

245

and the United States

246

–have completely removed the term “deliberately”during their national imple-

mentation and thus potentially expanded the applicability of the underlying

offence to acts that are not calculated or intentional.

247

Germany also changed

the requirement of “calculated to bring about”to “apt to bring about.”

248

Moreover, El Salvador changed the wording to “subjecting to conditions which

make subsistence difﬁcult,”

249

and Georgia to “hard living conditions.”

250

None of these deﬁnitions require the intention to physically destroy the pro-

tected group.

The underlying offence of “imposing measures intended to prevent births

within the group”has also been altered by certain countries. Andorra

included the act of “making births difﬁcult”

251

and Lithuania “restricting the

birth of the persons belonging to those groups.”

252

The Cambodian deﬁn-

ition requires “imposing forceful measures or voluntary means intended to

prevent births within the group.”

253

The addition of the words “‘voluntary

means’” extends the underlying act of genocide beyond its original

construction.

254

242 Art. 210(1)(c) of the Criminal Code of the Democratic Republic of São Tomé and Principe

of 2012.

243 Art. 607(1)(3) of the Criminal Code of the Kingdom of Spain of 1995.

244 Art. 264(1)(b) of the Criminal Code of the Swiss Federation of 1937.

245 Art. 123(1)(f) of the Criminal Code of the Republic of Timor-Leste of 2009.

246 Section 1091(a)(4) of the US Code –18. Crimes and Criminal Procedure of 1948.

247 See Kai Ambos, Treatise on International Criminal Law –Vol. I.: Foundations and General

Part (Oxford: Oxford University Press, 2013) 294–295.

248 Art. 6(3) of the German Code of Crimes against International Law of 2002 (die geeignet

sind).

249 Art. 361 of the Criminal Code of the Republic of El Salvador of 1997 (difícil su

subsistencia).

250 Art. 407 of the Criminal Code of the Republic of Georgia of 1999.

251 Art. 456 of the Criminal Code of the Principality of Andorra of 2005 (rendre les naissances

difﬁciles).

252 Art. 99 of the Criminal Code of the Republic of Lithuania of 2000.

253 Art. 183(4) of the Criminal Code of the Kingdom of Cambodia. This is based on the unofﬁ-

cial translation provided in Cheung Bunleng, Criminal Code, Khmer –English Translation

(Phnom Penh: Edition Angkor, 2011). Another available online unofﬁcial translation, how-

ever, translates the same provision as “submitting the members of the group to conditions

that entail total or partial destruction of the group.”www.unodc.org/res/cld/document/

khm/criminal_code_of_the_kingdom_of_cambodia_html/Cambodia_Criminal-Code-of-

the-Kingdom-of-Cambodia-30-Nov-2009-Eng.pdf [accessed on 12 September 2019]. If

this is the correct translation then the Cambodian legislation did not change the scope of

application of the underlying offence.

254 See Simon M. Meisenberg, “Complying with Complementarity? The Cambodian Imple-

mentation of the Rome Statute of the International Criminal Court”(2015) 5 Asian Journal

of International Law, 123–142, at 127.

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Expanding the scope of application of the crime of genocide to additional

modalities

Ten countries have introduced new forms of genocide in their domestic legisla-

tion that signiﬁcantly expand the scope of application of the internationally

accepted deﬁnition. Panama,

255

Spain,

256

and Uruguay

257

created the underlying

offence of “preventing a group’s way of life”to complement preventing birth;

Italy criminalized as genocide “forcing members of the protected group to wear

distinctive signs or emblems”;

258

and Bolivia included committing “bloody mas-

sacres in the country”;

259

while Paraguay prosecutes “making it impossible for

[members of protected groups] to worship or practice their customs.”

260

Guinea-Bissau

261

and Timor-Leste

262

prohibit in identical terms “[G]eneral

conﬁscation or seizure of goods owned by the members of the group”and “the

prohibition of certain commercial, industrial or professional activities to the

members of the group.”The Criminal Code of Vietnam includes “destroying

sources of living, cultural or spiritual life of a nation or sovereign territory,

upsetting the foundation of a society in order to sabotage it.”

263

All these new underlying acts are obviously an extension of certain forms of

crimes against humanity to genocide,

264

but the criminal legislation of São Tomé

and Príncipe elevates its hate crime legislation by including persons who publicly

“[d]efame or injure a person or a group of persons or expose them to public con-

tempt for reasons of race, colour or ethnic origin”or who “[p]rovoke acts of vio-

lence against persons or group of persons of other races, colour or ethnic origin.”

265

255 Art. 440(8) of the Criminal Code of the Republic of Panama of 2007 (imponer medidas des-

tinadas a impeder …el género de vida de ese grupo).

256 Art. 607(1)(4) of the Criminal Code of the Kingdom of Spain of 1995 (adoptaran cualquier

medida que tienda a impedir su género de vida).

257 Art. 16(C) of the Law on Cooperation with the International Criminal Court in the Fight

against Genocide, War Crimes and Crimes against Humanity of the Republic of Uruguay of

2006 (condiciones de existencia que puedan impedir su género de vida).

258 Art. 6 of Law No. 962 on the Prevention and Punishment of the Crime of Genocide of

9 October 1967 of the Republic of Italy (imposizione di marchi o segni distintivi).

259 Art. 138 of the Criminal Code of the Plurinational State of Bolivia of 1972 (masacres san-

grientas en el país).

260 Art. 319(4) of the Criminal Code of the Republic of Paraguay of 1997 (imposibilitara el

ejercicio de sus cultos o la práctica de sus costumbres).

261 Art. 101(1)(e)-(f) of the Criminal Code of the Republic of Guinea-Bissau of 1993 (conﬁsco

ou apreensăo generalizada dos bens propriedade dos elementos do grupo; proibiçăo de determi-

nadas actividades comerciais, industriais ou proﬁssionais aos elementos do grupo).

262 Art. 123(1)(g)-(h) of the Criminal Code of the Republic of Timor-Leste of 2009 (conﬁsco

ou apreensăo generalizada dos bens propriedade dos elementos do grupo; proibiçăo de determi-

nadas actividades comerciais, industriais ou proﬁssionais aos elementos do grupo).

263 Art. 422(1) of the Criminal Code of the Socialist Republic of Viet Nam of 2015.

264 This is especially clear with regard to the Criminal Code of Vietnam, which lists genocide as

a crime against humanity. Ibid.

265 Art. 210(2)(a)-(b) of the Criminal Code of the Democratic Republic of São Tomé and Prin-

cipe of 2012 (difamar ou injuriar uma pessoa ou um grupo de pessoas ou expuser as mesmas

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Reasons for changing the crime of genocide in the domestic legal

environment

This comprehensive review of national legislations has revealed a remarkable

divergence from the internationally accepted deﬁnition of the crime of genocide.

Admittedly, focusing solely on domestic legal regulations inevitably gives an

incomplete picture, as domestic legal doctrine and ultimately domestic courts

might (re)interpret the diverging criminal provisions to better align them with

the international standard(s),

266

choose between plausible contradictory

interpretations,

267

or even signiﬁcantly expand their application.

268

Nevertheless,

the compiled data makes it possible to draw certain preliminary conclusions

about the reasons and possible ramiﬁcations of this phenomenon.

Domestic version of genocide as a means to ensure historical justice

A transition from authoritarianism to democracy almost inevitably brings about

areﬂection on the past and a need to reafﬁrm the fundamental values of the

new political establishment in opposition to the legacy of oppression. In such

periods, legal regulations are “both backward-looking and forward-looking,

retrospective and prospective, continuous and discontinuous,”

269

essentially

being a tool to assist in the transformation of the society. It is to be expected

that under such circumstances many states may opt to expand the international

deﬁnition of genocide to encompass speciﬁc victim groups or speciﬁc underlying

offences.

a desprezo público por causa da raça, da sua cor ou da sua origem étnica; Provocar actos de

violência contra pessoa ou grupos de pessoas de outra raça, de outra cor ou de outra origem

étnica).

266 See, for example, the 1999 decision of the Estonian Supreme Court holding that the killing

of three partisans in 1946 did not constitute an act of genocide but a crime against human-

ity. Eva-Clarita Pettai, “Prosecuting Soviet Genocide: Comparing the Politics of Criminal

Justice in the Baltic States”(2016) European Politics and Society 1–14, at 6.

267 In the Ethiopian “Red Terror Trials,”for instance, the Ethiopian Supreme Court held that

political groups belonged to the protected groups in Art. 281 of the Penal Code of the

Empire of Ethiopia of 1957, even though the authoritative Amharic version did not categor-

ically list it, relying on the English version of the Code and the original French draft. Mar-

shet Tadesse Tessema, Prosecution of Politicide in Ethiopia –The Red Terror Trials

(Springer, 2018) 190–191.

268 See, for example, the decision of the German Federal Constitutional Court in the Jorgić

case afﬁrming lower German court judgments that held that genocidal intent can be estab-

lished even if the perpetrator had not attempted to destroy the group physically or biologic-

ally but “in its social existence, as a social unit with its particularities and its self-perception

as a group.”Geltung deutschen Strafrechts für im Ausland begangenen Völkermord,

German Federal Constitutional Court (BVerfG), Judgment of 12 December 2000 –2 BvR

1290/99, at III. 4 a).

269 Ruti Teitel, Transitional Justice (Oxford: Oxford University Press, 2000) 215.

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In the Baltic states, for instance, after regaining their independence following

decades of brutal repression against political groups during the Soviet era,

270

Estonia included “a group resisting occupation or any other social group,”

271

Latvia “persons identiﬁable by social class,”

272

and Lithuania “social and polit-

ical group.”

273

Similarly, the atrocities committed by repressive regimes plausibly

explain why most Latin American countries expanded the deﬁnition of genocide

in their domestic criminal legislation.

274

It is understandable that states with particular experiences of repression and

human rights violations may seek to adapt the internationally agreed-upon def-

inition to their particular contexts,

275

since “genocide,”as the “crime of

crimes,”bears a special stigma and the term conveys an extraordinary sense

of gravity and evil.

276

Indeed, in many countries debating the qualiﬁcation of

national tragedies as genocide could very well trigger public outrage since the

general public might regard it as a denial of their historic grievances.

277

More-

over, many countries have opted to fuse the category of genocide with crimes

against humanity, or simply employ the crime of genocide in the absence of

a national deﬁnition of crimes against humanity. An interesting example of such

an approach was the adoption of the law “On Genocide and Crimes against

Humanity Committed in Albania during the Communist Regime for Political,

Ideological and Religious Motives”in 1995.

278

While the title ostensibly

claimed the law served to prosecute genocide, the text itself was focused on

270 For more detail see Eva-Clarita Pettai and Vello Pettai, Transitional and Retrospective Justice

in the Baltic States (Cambridge: Cambridge University Press, 2014) 43–64.

271 Art. 61(1) of the Criminal Code of the Republic of Estonia of 1991 (as amended in 1994).

The new Criminal Code retained this terminology. See Art. 90 of the Criminal Code of the

Republic of Estonia of 2001.

272 Art. 68(1) of the Criminal Code of the Republic of Latvia of 1991 (as amended in 1993).

This provision was changed with the adoption of the new Criminal Code in 1998 and this

reference was omitted. See Art. 71 of the Criminal Code of the Republic of Latvia of 1998.

273 Art. 2 of the Law on the Liability for Genocide against the People of Lithuania of 1992

declared as genocide “the killing and torturing and deportation of Lithuanian inhabitants

committed during the occupation and annexation of Lithuania by Nazi Germany and the

USSR.”The 1998 Amendment of the Criminal Code of 1991 introduced Art. 71, which

deﬁned “annihilation of people on social and political grounds”as genocide. The current

formulation was adopted in 2000. See Art. 99 of the Criminal Code of the Republic of

Lithuania of 2000.

274 Elizabeth Santalla Vargas, “An Overview of the Crime of Genocide in Latin American Juris-

dictions”10 (2010) International Criminal Law Review 441–452, at 442.

275 Cristina Fernández-Pacheco Estrada, “Domestic Prosecution of Genocide: Fragmentation

or Natural Diversity?”in Larissa van den Herik and Carsten Stahn (eds.) The Diversiﬁcation

and Fragmentation of International Criminal Law (Leiden: Martinus Nijhof, 2012)

429–459, at 454.

276 For more on the tension between the socially and legally accepted meaning of the term, see

David Luban, “Calling Genocide by its Rightful Name: Lemkin’s Word, Darfur, and the

UN Report”7 (2006) Chicago Journal of International Law, 303–320.

277 Estrada, supra note 272, 456.

278 Nr. 8001, 22 September 1995.

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crimes against humanity, thus trying to draw on the moral stigma of genocide

but still complying with international standards.

279

Change through the “domestication”of international criminal law

International law norms are seldom automatically incorporated into the domes-

tic legal framework, but instead become part of domestic law through “a process

of translation from international to national.”

280

Domestic lawyers have their

own system of practices, “a body of internal protocols and assumptions, charac-

teristic behaviors and self-sustaining values,”

281

which might be signiﬁcantly dif-

ferent from the international law scholars’modus operandi. Domestic lawyers

are usually not well acquainted with international law methodology and thus

international norms have to be adapted so that they ﬁt into the national legal

system.

282

This creates a “double life”–a simultaneous co-existence of inter-

national and domesticated norms at one and the same time.

283

This is exacer-

bated by the fact that domestic lawmakers generally have very little political

incentive to ensure the consistency of domestic law with international law, and

sometimes might even be motivated to push for a diverging implementation.

284

Such domestication is often explicitly endorsed by local courts. For instance, the

Colombian Constitutional Court in 2005 emphasized that the domestic deﬁnition

of genocide is not conﬁned to international law, but rather ﬁnds its justiﬁcation in

the very protections afforded by the Constitution.

285

Similarly, in 2014 the Lithu-

anian Constitutional Court reafﬁrmed that states can broaden the concept of geno-

cide and that the differences of the Lithuanian national deﬁnition of genocide were

justiﬁed given “the concrete legal and historical context.”

286

279 For more on this law and the subsequent prosecutions, see Robert C. Austin and Jonathan

Ellison, “Post-Communist Transitional Justice in Albania”22 (2008) East European Polit-

ics and Societies 373–401.

280 Karen Knop, “Here and There: International Law in Domestic Courts”32 (1999–2000)

New York University Journal of International Law and Politics, 501–535, at 506.

281 Pierre Bourdieu, “The Force of Law: Toward a Sociology of the Juridical Field”38 (1987)

The Hastings Law Journal 805–853, at 806.

282 André Nollkaemper, National Courts and the International Rule of Law (Oxford: Oxford

University Press, 2011) 219.

283 Carsten Stahn and Larissa van den Herik, “‘Fragmentation’, Diversiﬁcation and ‘3D’Legal

Pluralism: International Criminal Law as the Jack-in-the-Box?”in Larissa van den Herik and

Carsten Stahn (eds.) The Diversiﬁcation and Fragmentation of International Criminal Law

(The Hague: Martinus Nijhof, 2012) at 40.

284 See Kevin L. Cope and Hooman Movassagh, “National Legislatures –The Foundations of

Comparative International Law”in Anthea Roberts et al. (eds.) Comparative International

Law (Oxford: Oxford University Press, 2018) 271–294, at 272.

285 Colombian Constitutional Court, Sentence C-148/05 of 22 February 2005. See Vargas,

supra note 271, at 448.

286 “On the Compliance of Certain Provisions of the Criminal Code of the Republic of Lithuania

that are Related to Criminal Responsibility for Genocide with the Constitution of the Republic

of Lithuania,”Lithuanian Constitutional Court, Decision No. KT11-N4/2014,

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Consequently, diverging national deﬁnitions of genocide might often be the

result of different legal socialization processes and the necessity to adapt inter-

national norms into the domestic legal environment.

Path dependency

Legal regulation, and especially criminal law legislation, is inherently conserva-

tive and usually characterized by gradual change; hence states often retain pre-

existing deﬁnitions of international crimes even if they otherwise implement the

provisions of the Rome Statute.

287

This, however, indicates that idiosyncratic

versions of the crime of genocide often remain unaltered and can even spread to

other jurisdictions, which adopt them due to existing historical/cultural/linguis-

tic ties between the countries. For instance, the crime of genocide is identically

deﬁned in Austria

288

and Liechtenstein,

289

and in Guinea-Bissau

290

and Timor-

Leste.

291

São Tomé and Principe

292

adopted the deﬁnition of genocide of the

previous Portuguese Criminal Code.

293

Even without a full-scale transplantation of a national deﬁnition, certain

elements of the domestic approach can cross-pollinate. The French deﬁnition –

which extended protected groups to groups “determined by any other

arbitrary criterion”

294

–was adopted by Andorra,

295

Burkina Faso,

296

the Cen-

tral African Republic,

297

Chad,

298

Comoros,

299

and Niger.

300

Similarly,

18 March 2014. For a contrary example, see the Hungarian Constitutional Court decision that

declares that the content of international crimes are deﬁned by the international community.

Hungarian Constitutional Court, Decision No 53/1993, 13 October 1993, Section IV(1).

287 Terracino, supra note 15, at 423.

288 Art. 321 of the Criminal Code of the Republic of Austria of 1974.

289 Art. 321 of the Criminal Code of the Principality of Liechtenstein of 1987.

290 Art. 101 of the Criminal Code of Guinea-Bissau of 1993.

291 Art. 123 of the Criminal Code of the Republic of Timor-Leste of 2009.

292 Art. 210 of the Criminal Code of the Democratic Republic of São Tomé and Principe of

2012. However, the Portuguese provision was entitled “genocide and racial discrimination,”

while Art. 210 is only called “genocide”; thus, the legislation of São Tomé and Principe

eliminated the difference between the two categories.

293 Art. 189 of the Criminal Code of the Republic of Portugal of 1982.

294 Art. 211(1) of the Criminal Code of the Republic of France of 1992 (groupe déterminé à

partir de tout autre critère arbitraire).

295 Art. 456 of the Criminal Code of the Principality of Andorra of 2005 (groupe déterminé à

partir de tout autre critère arbitraire).

296 Art. 421–1 of the Criminal Code of Burkina Faso of 2019 (groupe déterminé à partir de tout

autre critère arbitraire).

297 Art. 152 of the Criminal Code of the Central African Republic of 2010 (groupe déterminé à

partir de tout autre critère arbitraire).

298 Art. 296 of the Penal Code of the Republic of Chad of 2017 (groupe déterminé à partir de

tout autre critère arbitraire).

299 Art. 17 of Decree N° 12-022/PR, promulgating law No. 11–022 of 2011 on the Imple-

mentation of the Rome Statute (groupe déterminé à partir de tout autre critère arbitraire).

300 Art. 208(1) of the Criminal Code of the Republic of Niger of 2003 (groupe déterminé à

partir de tout autre critère arbitraire).

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Panama

301

and Uruguay

302

borrowed the actus reus of “preventing a group’s

way of life”from the Spanish Criminal Code.

303

Translation and drafting errors

In certain instances, differences between the international and domestic deﬁn-

itions of genocide might be the result of bad translation or sloppy drafting. This

seems to be fairly common with regard to the term “as such.”Even though 65

countries omitted the term from their domestic deﬁnition,

304

there is no evi-

dence that this omission was deliberate on the part of these states, so the most

plausible explanation is that they simply did not recognize its potential signiﬁ-

cance. Two countries, Bangladesh

305

and Cambodia

306

, on the other hand

reversed the words by implementing them “such as,”which clearly can be

attributed to a drafting error.

307

In addition, the German deﬁnition of genocide prohibits “conditions of life

imposed on the group that are apt to bring about its physical destruction.”

308

Even though changing the term from “deliberately”to “apt to”arguably lowers

the threshold of applicability of the crime, it is the result of a mistranslation.

309

Conclusions: e pluribus unum or resurrection of the Lemkian

ideal?

While legal scholarship concerning the domestic deﬁnitions of the crime of

genocide has not been uncommon, until now these studies only focused on

301 Art. 440(8) of the Criminal Code of the Republic of Panama of 2007 (imponer medidas des-

tinadas a impeder …el género de vida de ese grupo).

302 Art. 16(C) of the Law on Cooperation with the International Criminal Court in the Fight

against Genocide, War Crimes and Crimes against Humanity of the Republic of Uruguay of

2006 (condiciones de existencia que puedan impedir su género de vida).

303 Art. 607(1)(4) of the Criminal Code of the Kingdom of Spain of 1995 (adoptaran cualquier

medida que tienda a impedir su género de vida).

304 See “Expanding the scope of application of the crime of genocide by the omission of ‘as

such’,”above.

305 Section 3(2)(c) of the International Crimes (Tribunals) Act 1973 of the People’s Republic

of Bangladesh.

306 Art. 4 of the Law on the Establishment of the Extraordinary Chambers, with Inclusion of

Amendments as Promulgated on 27 October 2004.

307 This is especially evident in the Cambodian case, as the law speciﬁes that it should be inter-

preted in accordance with the Genocide Convention. Art. 4 of Law on the Establishment of

the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 Octo-

ber 2004 (NS/RKM/1004/006).

308 Art. 6(1)(3) of the German Code of Crimes against International Law of 2002.

309 Kai Ambos and Stephan Wirth, “Genocide and War Crimes in the Former Yugoslavia Before

German Criminal Code”in Horst Fischer, Claus Kress, and Sascha Rolf Lüder (eds.) Inter-

national and National Prosecution of Crimes Under International Law (Berlin: Berlin

Verlag, 2001) 769, at 785.

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a limited number of states and often failed to recognize changes in national

legislation.

310

The hitherto-prevailing view held that, with a few limited excep-

tions, states generally followed the international deﬁnition of genocide.

311

My research clearly disproves this view. Out of the 196 countries examined

(193 UN member states and the Holy See, Kosovo, and Palestine) and the Spe-

cial Administrative Zone of Macao, I found that only 39 countries have com-

pletely identical deﬁnitions,

312

while 100 countries and the Special

Administrative Region of Macao have varying degrees of differences and 57

310 See Schabas, supra note 28, 405–409; Ferdinandusse, supra note 66, 26–39; Estrada, supra

note 272, 429–459.

311 Bekou, supra note 203, at 680.

312 Antigua and Barbados, the Genocide Act of Antigua and Barbuda of 1975; Argentina, Art.

8 of Law No. 26.200 of 2007; Australia, Division 268 of the Criminal Code Act 1995 of

the Commonwealth of Australia; Bahamas, the Genocide Act of 1969 of the Common-

wealth of the Bahamas; Belgium, Articles 136ter of the Criminal Code of the Kingdom of

Belgium of 1867; Belize, the Genocide Act of 1971 of Belize; Brazil, Art. 83.V of the Crim-

inal Code of the Federative Republic of Brasil of 1940; Burundi, Art. 195 of the Criminal

Code of the Republic of Burundi of 2009; Croatia, Art. 88 of the Criminal Code of the

Republic of Croatia of 2011; Cuba, Art. 116(1) of the Penal Code of the Republic of Cuba;

Cyprus, Section 2 of the 2006 Law Amending the Rome Statute for the Establishment of

the International Criminal Court (Ratiﬁcation) Law of 2002; Democratic Republic of Congo,

Art. 221 of the Criminal Code of the Democratic Republic of Congo of 1940; Eritrea, Art.

107 of the Criminal Code of the State of Eritrea of 2015; Fiji, Crimes Decree of 2009 of

the Republic of Fiji Islands; Ghana, Art. 49(A) of the Criminal Code of the Republic of

Ghana of 1960; Greece, Law No. 3948/2011, on Compliance with the Provisions of the

Statute of the International Criminal Court; Grenada, Grenada Genocide Act of 1972;

Guinea, Art. 192 of the Criminal Code of the Republic of Guinea of 2016; Iceland, Law on

the Punishment of Genocide, Crimes against Humanity, War Crimes and Crimes against

Peace of 2018; Indonesia, Art. 8 of the Law No. 26 (2000) establishing the Ad Hoc Human

Rights Court; Iraq, Art. 11 of the Statute of the Iraqi Special Tribunal; Ireland, Section 6 of

the International Criminal Court Act 2006; Israel, the Crime Of Genocide (Prevention And

Punishment) Law of 1950; Kenya, Art. 6(4) of the International Crimes Act of 2008; Kiri-

bati, Art. 6(4) of the International Crimes Act of 2008; Netherlands, Section 3 of the Inter-

national Crimes Act of 2003 Containing Rules Concerning Serious Violations of

International Humanitarian Law; Rwanda, Art. 91 of the Criminal Code of the Republic of

Rwanda of 2018; Saint Vincent and the Grenadines, Art. 157 of the Criminal Code of Saint

Vincent and the Grenadines of 1988; Samoa, Section 5 of the International Criminal Court

Act 2007; Serbia,Art. 370 of the Criminal Code of the Republic of Serbia of 2005; Sey-

chelles,the Genocide Act of 1969; Solomon Islands, Art. 52 of the Criminal Code of the

Solomon Islands of 1963; South Africa, Part 1 of Schedule 1 of the Implementation of the

Rome Statute of the International Criminal Court Act (2002); Sweden, Section 1 of the Act

on Criminal Responsibility for Genocide, Crimes against Humanity and War Crimes of

2014; Tonga, Section 2 of the Genocide Act of Tonga of 1969; Trinidad and Tobago, Art.

9 of the International Criminal Court Act of 2006; Tuvalu, Art. 62 of the Penal Code of

Tuvalu of 1985; United Kingdom, Art. 50(1) of the International Criminal Court Act 2001

(four territories, however, have separate implementing legislation with identical text. Scot-

land, International Criminal Court (Scotland) Act 2001; Isle of Man, International Criminal

Court Act 2003; Bailiwick of Jersey, the International Criminal Court (Jersey) Law 2014;

Bailiwick of Guernsey, the International Criminal Court (Bailwick of Guernsey) Law, 2019).

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countries have not even implemented the crime of genocide in their domestic

criminal law.

313

These results clearly demonstrate that domestic divergences are

not simply ﬂukes or aberrations, but actually extend to the majority of states.

However, this does not necessarily mean that these changes should have an

impact on the content or interpretation of the international deﬁnition of geno-

cide. It has been suggested that these differences can be interpreted as a sign of

the dissatisfaction of states with the international deﬁnition,

314

or that they can

be evidence that the customary deﬁnition of the crime of genocide is much

broader, even including political groups.

315

However, my research suggests that

these changes are largely idiosyncratic modiﬁcations that are often based on con-

siderations of historical justice, adaptation to the domestic legal system, path

dependency, or simple errors; i.e. they are not modiﬁcations undertaken with

the intention of creating a new opinio juris and state practice. As Kleffner aptly

put it, they are simply “domestic crimes in ‘international disguise’.”

316

As a result, states should be extremely cautious about how they apply these

domestic deﬁnitions. Unless the prosecuted act constitutes a crime against

humanity or genocide, expansive deﬁnitions of genocide should not be applied

retroactively as that would violate the principle of legality. Exercise of universal

jurisdiction based on such deﬁnitions could even result in international disputes.

The existence of restrictive deﬁnitions, on the other hand, does not seem to be

reconcilable with the international obligation to prevent and suppress the crime

of genocide, and thus could be regarded as an internationally wrongful act.

313 Algeria, Bhutan, Botswana, Brunei, Cameroon, China, Egypt, Equatorial Guinea, Eswatini,

Gabon, Gambia, Guyana, Haiti, India, Iran, Japan, Democratic People’s Republic of Korea,

Kuwait, Lao People’s Republic, Lebanon, Liberia, Libya, Madagascar, Malaysia, Maldives,

Marshall Islands, Micronesia, Monaco, Myanmar, Namibia, Nauru, Nepal, Nigeria, Paki-

stan, Palau, Palestine, Papua New Guinea, Qatar, Saint Kitts and Nevis, Saint Lucia, San

Marino, Saudi Arabia, Sierra Leone, Somalia, South Sudan, Sri Lanka, Sudan, Suriname,

Syria, Tanzania, Thailand, Tunisia, United Arab Emirates, Vanuatu, Venezuela, Yemen, and

Zambia.

314 Coria, supra note 205, 457.

315 Schaack, supra note 159, at 2282–2283.

316 Kleffner, supra note 14, 100.

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5 Responsibility of members of the

government and other public

ofﬁcials pursuant to Article IV of

the 1948 UN Convention on the

Prevention and Punishment of the

Crime of Genocide

Kamil Boczek

Convention provision and its deﬁnition

The concept of accountability of public ofﬁcials

The rule setting out the legal accountability of public ofﬁcials in international

criminal law is older than the term “genocide”itself. It was expressed directly

for the ﬁrst time in Article 7 of the Charter of the International Military Tribu-

nal in Nuremberg (IMT).

What needs to be underlined is that at the time

when the IMT and its Charter were created there was no legal deﬁnition of

genocide, and there are no provisions concerning genocide in the Charter. Des-

pite Raphael Lemkin’s struggles to include this term, it was deliberately omitted

because of the lack of both a legal and customary deﬁnition.

However, the

doctrine is nearly unanimous that the crime of genocide stems from the crimes

against humanity while at the same time being the most heinous crime,

and

thus we could apply the rules of the Charter to the crime of genocide. In its

ﬁnal judgment the IMT endeavoured to address the claims that both the Char-

ter and the IMT were “ex post facto legal institutions”, and that the IMT is

solely “victors’justice”, stating that both the individual responsibility of natural

1 Nuremberg Charter (Charter of the International Military Tribunal) (1945), United Nations

Treaty Series, Volume 82, 279.

2 S. Power, A Problem from Hell: America and the Age of Genocide, London: Flamingo

2003, p. 50.

3 See H.T. King, Jr., “Genocide and Nuremberg”in The Criminal Law of Genocide: Inter-

national Comparative and Contextual Aspects, edited by R.J. Henham and P. Behrens, Alder-

shot: Ashgate 2007, pp. 30–31, W.A. Schabas, Origins of the Genocide Convention: From

Nuremberg to Paris, 40 Case Western Reserve Journal of International Law, 2008, p. 38;

D. Drożdż,Zbrodnia ludobójstwa w międzynarodowym prawie karnym, Warsaw: Wolters

Kluwer Polska - Oﬁcyna 2010, pp. 40–41.

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persons and the accountability of public ofﬁcials in cases of war crimes were

established, citing the Ex parte Quirin case from 1942

(the case of German

submarine soldiers caught and sentenced in the USA), and the struggles of the

international justice system to judge Kaiser William II after the atrocities of the

First World War, struggles which turned out to be fruitless since Belgium

denied his extradition. However, the treaty of Versailles

in Article 227 created

an obligation to try him, and this legal act created a rule to try natural persons

under Article 228.

More importantly, the IMT judgment presented an explan-

ation of this rule, stating that “he who violates the laws of war cannot obtain

immunity while acting in pursuance of the authority of the State if the State in

authorizing action moves outside its competence under International Law”.

This reasoning is yet another illustration of Gustav Radbruch’s famous for-

mula of Statutory Lawlessness and the Supra-Statutory Law.

Thus in under-

standing this provision, we should not consider it as a refusal to provide for

a defence by public ofﬁcials to legal actions commenced against them, but as

a formulation of their illegal act and granting the competence to undertake such

actions against the state that exceeded its authority. This line of thinking is

strongly expressed in the judgment of the District Court (then repeated in the

Appellant Court) in Eichmann’s case: “The very contention that the systematic

extermination of masses of helpless human beings by a government or regime

could constitute an ‘Act of State,’appears to be an insult to reason and

a mockery of law and justice.”

Also, the father of the term “genocide”, Raphael Lemkin, provided an inter-

esting view on the construction of relations between states and individuals who

commit genocide. In his opinion, contrary to being an act relating to a public

ofﬁcer fulﬁlling an act of state through his or her service as a public ofﬁcer,

genocide is an act of individuals, carried out through the institutions and ofﬁces

of a state.

When the Convention on the Prevention and Punishment of the Crime of

Genocide (hereinafter referred to as the “Convention”)

was created, the rule

regarding the accountability of public ofﬁcers seemed to be, after the

4Ex parte Quirin, 317 U.S. 1 (1942).

5 Treaty of Versailles (28 June 1919) available at www.loc.gov/law/help/us-treaties/bevans/

m-ust000002-0043.pdf (accessed: November 2018).

6France et al. v. Goring et al., (1946) 22 IMT 203, 13 ILR 203, (1946) 41 American Journal

of International Law 172, pp. 446–447.

7 Ibid., p. 447.

8 G. Radbruch, Gesetzliches Unrecht und übergesetzliches Recht, Süddeutsche Juristenzeitung

(1946), p. 107.

9Attorney General v. Adolf Eichmann, District Court of Jerusalem, Israel, Criminal Case No.

40/61, 11 December 1961.

10 D. Irvin-Erickson, Raphael Lemkin and the Concept of Genocide, Philadelphia: University of

Pennsylvania Press 2017, p. 245.

11 Convention on the Prevention and Punishment of the Crime of Genocide (1948) 78

UNTS 277.

Responsibility pursuant to Article IV 99

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100

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Nuremberg precedent was established, an essential but also an obvious element

of the legal act under international criminal law. This rule is placed in the Article

IV of the Convention:

Persons committing genocide or any of the other acts enumerated in Article

III shall be punished, whether they are constitutionally responsible rulers,

public ofﬁcials, or private individuals.

After the Convention was adopted, this rule was not only repeated but also

developed in many other legal acts, including (to name the most important

ones): the Rome Statute establishing the International Criminal Court of Justice

(ICC), in Article 27;

and the statutes of interim international criminal

courts –i.e. the International Criminal Court for the Former Yugoslavia

(ICTY), in Article 7,

and the International Criminal Court for Rwanda

(ICTR), in Article 6.

Contemporarily, the accountability of a person despite his or her ofﬁcial cap-

acity is not only a commonly recognized rule expressis verbis in the above-

mentioned legal acts (as well as in multiple others), but is also considered to be

a norm of customary international law and thus capable of being enforced even

in the case of an absence of a binding written act. This interpretation was estab-

lished in the judgment of the IMT in Nuremberg

and has been conﬁrmed

during numerous subsequent trials.

This norm was also included in the so-

called Nuremberg Principles.

What is more, “ofﬁcial capacity”may be treated

even as an exacerbating factor against the accused, as was stated by the ICTR in

its Jean Kambanda judgment, which concerned a prime minister during the

civil war in Rwanda, as his power and responsibility towards society were made

much more immense by this ofﬁce.

Dual deﬁnition

The issue of the accountability of public ofﬁcials is a twofold problem. On one

hand, the basic understanding of this rule has been presented above and was

12 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9.

13 Statute of the International Criminal Tribunal for the Former Yugoslavia, Annex of Report

S/25704 of the UN Secretary-General.

14 Statute of the International Criminal Tribunal for Rwanda, Annex of Resolution 955, S/

RES/955 (1994) of the UN Secretary-General.

15 T. Cyprian and J. Sawicki, Ludzie i sprawy Norymbergi, Poznań: Wydawn 1967, p. 457.

16 For example, Milošević(IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001,

paras. 26–34; Taylor (SCSL-03-01-I), Special Court of Sierra Leone, Decision on Immunity

from Jurisdiction, 31 May 2004, para. 43–53.

17 Principle III, Principles of International Law Recognized in the Charter of the Nürnberg Tri-

bunal and in the Judgment of the Tribunal, 1950.

18 Jean Kambanda (ICTR 97-23-S), Judgment and Sentence, 4 September 1998, para. 44.

100 Kamil Boczek

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explained in the Nuremberg and Eichmann trials. It consists of the prohibition

of an “ofﬁcial capacity”defense; i.e. that a defendant cannot not avoid account-

ability by claiming that his actions were solely acts of state and reﬂected not his

own actions but those of the state. On the other hand, it could be viewed as

a case of abolishing the legal immunities granted by states to their representa-

tives. According to William A. Schabas, only the ﬁrst part of the deﬁnition con-

stitutes the rejection of the “ofﬁcial capacity”defense, and the issues concerning

immunities are a completely separate topic.

Others claim that the abolishment

of immunities is implicit in the above-mentioned provisions.

In spite of this

interpretation, many rulings treat Article IV of the Convention (and its equiva-

lents in other legal acts) as a boundary to the exercise of one’s immunity.

Nonetheless the issue of immunity is strictly connected to the accountability

of public ofﬁcials, especially heads of state and other important public ﬁgures.

However, while rejection of the “act of state”defense is not controversial, the

case of immunities and its impact on Article IV raises serious questions in the

legal doctrine and in both international and national judicial systems. The desire

to sentence the most important people collides with the issue of immunities and

a country’s sovereignty –which are also parts of customary international law.

This distinction is exhibited in Article 27 of the Rome Statute, which treats

both of these situations separately:

1 This Statute shall apply equally to all persons without any distinction

based on ofﬁcial capacity. In particular, ofﬁcial capacity as a Head of

State or Government, a member of a Government or parliament, an

elected representative or a government ofﬁcial shall in no case exempt

a person from criminal responsibility under this Statute, nor shall it, in

and of itself, constitute a ground for reduction of sentence.

2 Immunities or special procedural rules which may attach to the ofﬁcial

capacity of a person, whether under national or international law, shall

not bar the Court from exercising its jurisdiction over such a person.

The Statute creates a clear distinction between a defence based on the merits

(“act of state”) and one based on procedural grounds.

Certainly, the latter is

restricted to a much narrower group, because states grant immunities only to

their most important representatives (e.g. prime minister, minister of foreign

affairs, or head of state) and it is limited to only procedural aspects.

19 W.A.Schabas, Genocide in International Law, Cambridge: Cambridge University Press 2009,

pp. 370–371.

20 E. David, “Ofﬁcial Capacity and Immunity of an Accused before the International Criminal

Court”in The Legal Regime of the International Criminal Court, edited by J. Doria, H.P.

Gasser, and M. Cherif Bassoiouni, Leiden and Boston: Marinus Nijhoff 2009, p. 743.

21 For example, in the case Special Court For Sierra Leone Taylor (SCSL-03-01-I), Decision on

Immunity from Jurisdiction, 31 May 2004, paras. 43–53.

22 David, Ofﬁcial Capacity, p. 743.

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In my opinion, restricting the meaning of Article IV of the Convention only

to the “act of state”defence and excluding immunities from its scope is not

only dangerous but also a contradiction in terms. The above-mentioned logic

behind the rejection of the “ofﬁcial capacity”defence is that a state exceeds its

competence according to the international law by allowing or ordering

a perpetrator to commit genocide. On the other hand, if we stipulate that

immunities are located outside the scope of Article IV, a state would be author-

ized to grant immunity for committing crimes that are outside its competence.

The issue of immunity was widely argued in the Arrest Warrant case

(Yerodia).

Belgium had issued an arrest warrant against Abdoulaye Yerodia

Ndombasi –who at the time was an incumbent minister of foreign affairs of the

Congo –based on the fact that he had committed war crimes and crimes against

humanity. The Arrest Warrant case and its judgment are discussed more thor-

oughly below.

Also, during the Saddam Hussein Dujail Trial the defendant’s attorneys tried

to invoke immunity, stating that the dictator was, during the trial, an incumbent

head of state and that the coalition forces were just an “occupying authority”.

The same defence was used during the Anfal Trial, which was limited strictly to

genocide committed on the Kurds.

Not surprisingly, this strategy was dis-

missed in both cases –it would be highly unprecedented if the courts would

have denied the legality of the administration that had established them.

Jurisprudence on immunity and the ofﬁcial capacity defence

The Eichmann case

Adolf Eichmann was one of the most signiﬁcant Nazi perpetrators. He was

hiding in Argentina after the war and was captured by the Israeli special forces

and subsequently transferred to Israel in 1960, where he was later judged and

sentenced to death.

The defendant tried to undermine the legality of the trial, stating that none

of the actions he was accused of took place in the state of Israel (which did not

even exist during the Second World War); that he was not an Israeli citizen;

that the legal basis of the trial was enacted after the actions in question (the act

under which he was tried was passed in 1950); and that the court, together

with all the judges, were Jewish, which raised the issue of their neutrality.

Nevertheless, the court dismissed his motion for extradition to the Federal

23 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment,

14 February 2002.

24 Judgment of the Dujail Trial at the Iraqi High Tribunal, English Translation, Case No. 1/C

1/2005.

25 M.J. Kelly, Ghosts of Halabia, London: Praeger Security International 2008, pp. 80–82.

26 Supreme Court of Israel judgment from 29 May 1962, Attorney General v. Adolf Eichmann,

Criminal Appeal 336/61.

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Republic of Germany. Eichmann then endeavoured to apply the “act of state”

defence, claiming that every action he undertook was performed as a state ofﬁ-

cial, and thus that the state was solely responsible for his actions. This defence

was dismissed on the grounds that the defence of ofﬁcial capacity stemming

from the sovereignty of the state was limited in cases of extreme violations of

international and criminal law, while also underlining that a limitless sovereignty

would deprive international law of the sense of its existence. According to inter-

national law, the state does not have a competence to order its representatives

to violate international criminal law. What is more, the court contended that the

extent of the sovereignty of a state had to be established taking into consider-

ation the speciﬁc circumstances of each case. The court thus indicated the

strong moral grounds for the conviction that justiﬁed the potential lack of

authority in this case.

Arrest Warrant case

As mentioned above, Belgium issued an arrest warrant for the incumbent

minister of foreign affairs of the Congo. In doing so it argued that the atroci-

ties that he had committed had taken place before he was appointed as

a minister and without any connection whatsoever to his function as minister

of foreign affairs (the atrocities he was indicted for were connected to the

Rwandangenocideandhadtakenplacebeforehewasappointedtohis

ofﬁce). Furthermore, the arrest warrant did not include situations in which he

had acted as a legal representative (e.g. during the time of his delegation).

Belgium tried to prove that the arrest warrant was strictly linked to Yerodia

personally, not as a minister, and that any immunity attached solely to acts

undertaken as a minister of foreign affairs.

The International Court of Justice (ICJ) declared, however, that the arrest

warrant was issued in breach of international law. The ICJ contended that, des-

pite Article 27 of the Rome Statute, the exception of immunity in international

humanitarian law crimes did not exist in customary international law, and thus

the immunities of ofﬁcials of states not bound by the Rome Statute was oppos-

able. It was underlined that the foreign minister represented his country only by

the virtue of his position, and thus any exception to his immunity as an incum-

bent representative would pose a threat to the interests of the represented state.

The ICJ maintained that there is no distinction between the actions of an

incumbent minister of foreign affairs and his personal acts, and that in the event

of his arrest he would not be capable of serving his position as a public ofﬁcial,

which would pose a threat to the wellbeing of the state. Furthermore, the ICJ

asserted that a signiﬁcant part of performing this particular ofﬁcial position con-

sisted of travels and delegations, and that such an arrest warrant may restrain

a minister of foreign affairs from leaving the borders of his country. In oppos-

ition to the international criminal tribunals (like the ICTY or ICTR), Belgium

was not granted the authority to sentence incumbent ofﬁcials. At the same time,

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the ICJ stated that the immunity of ofﬁcials did not constitute a bar in the situ-

ations listed below:

•When such public ofﬁcials are tried in their own country according to the

domestic law;

•When a state decides to waive the immunity of its representative (which did

not happen in this situation);

•When a public ofﬁcial ceases to hold ofﬁce;

•When an international tribunal is expressly provided with jurisdiction over such

a person (in practice if such jurisdiction is granted by the state, the best example

being the Milosevic trial, when he was indicted while he was still in ofﬁce).

The Pinochet trials

There were actually several trials of the former dictator of Chile –in Belgium,

Spain, Great Britain, and Chile, most of which were conducted with Pinochet

in absentia. I focus here on the case in Great Britain, since it was the one which

garnered the most publicity.

In October 1998 Augusto Pinochet was arrested in London (where he was

staying in hospital) based on the Extradition Act from 1989.

This was

a consequence of the arrest warrant issued by Spain, and it resulted in

a judgment for his temporary arrest for 40 days.

In a ﬁnal judgment concern-

ing the former dictator, the court agreed to commence the extradition proced-

ure in spite of his immunity.

In its judgment it stated that the immunity of

a former head of state (who was in ofﬁce while the atrocities were committed)

did not protect him in cases of crimes against international humanitarian law,

noting that it was the ﬁrst time “a local domestic court has refused to afford

immunity to a head of state or former head of state on the grounds that there

can be no immunity against prosecution for certain international crimes”.

The judgment differentiated two types of immunity. The ﬁrst, ratione personae,

asserts immunity for incumbent public ofﬁcials and is absolute irrespective of the

character of the process or allegations. The second, ratione materiae, is a logical

consequence of the ﬁrst –it pertains only to actions undertaken within the scope

of the ofﬁce and during service in the ofﬁce. The court contended that crimes vio-

lating international humanitarian law could not under any circumstances be con-

sidered as acting within the scope of ofﬁce, and thus the immunity of Augusto

Pinochet did not protect him from legal procedures relating to such acts.

27 M. Komosa, Sprawa Pinocheta, Warsaw: Oﬁcyna Wydawnicza 2005, p. 131.

28 Extradition Act 1989 (repealed) 1989 c. 33.

29 M. Komosa, Sprawa Pinocheta, pp. 122–123.

30 Judgment of House of Lords (2000), R (Pinochet Ugarte) v Bow St Metropolitan Stipendiary

Magistrate, 1 AC 61, 119 and 147.

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The ﬁrst proceedings undertaken by the ICC

Despite the ICC’s brief history (the Court began to operate on 1 July 2002), it

has conducted a couple of proceedings that have been directly and/or indirectly

connected to the scope of Article IV of the Convention. In particular, the issue

of immunities was raised in front of the ICC in the cases of the arrest warrants

for Colonel Gaddaﬁof Libya and Sudanese president Omar Al Bashir. Here

I focus on the latter since it has garnered the most publicity, while the arrest

warrant against Gaddaﬁdid not raise many controversies since the dictator was

assassinated (October 2011) just a few months after the issuance of said warrant

in June 2011.

The proceedings concerning President Omar Al Bashir are related to possible

atrocities (namely war crimes, crimes against humanity, and genocide) that were

conducted during the crisis in Darfur between March 2003 to, at least,

14 July 2008, and which were carried out against the Fur, Masalit, and Zaghawa

tribes. The situation in Darfur was referred to the ICC’s Prosecutor by the

United Nations Security Council (UNSC) in 2005 in UNSC Resolution

1593.

In the resolution the UN urged that “the Government of Sudan and all

other parties to the conﬂict in Darfur, shall cooperate fully with and provide any

necessary assistance to the Court and the Prosecutor”. The referral of the Secur-

ity Council was based on Chapter VII of the UN Charter and such referral

could constitute grounds to initiate proceedings based on Article 13 of the

Rome Statute. The fact that it was the Security Council that referred the case to

the ICC is very important because Sudan is not a party to the Rome Statute

and the jurisdiction to initiate a proceeding was vested in the ICC by the UN.

After a few years of futile cooperation with the Sudanese government, the

ICC decided that the atrocities were committed (at least in cooperation with

and/or tolerated by) in fact by the highest-ranking public ofﬁcers, and thus

their will to carry out the actions was apparent. The Court decided to issue

arrest warrants against the most important public ﬁgures, including the incum-

bent president at that time, Omar Al Bashir. The Pre-Trial Chamber issued, on

4 March 2009 and 12 July 2010, two warrants of arrest against Al Bashir for

war crimes, crimes against humanity, and genocide allegedly committed in the

Darfur region.

This action on the part of the ICC has contributed to a heated

debate both in the doctrine and in political terms. Many jurists claims that the

ICC has overreached its competence because the referral did not explicitly deal

with the case of immunities, and that the application of Article 27 of the Rome

31 Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddaﬁ, 27 June 2011 (ICC-01/

11-13).

32 S/RES/1593 (2005).

33 Warrant of Arrest for Omar Hassan Ahmad Al Bashir, 4 March 2009, ICC-02/05-01/09-1;

Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, 12 July 2010, ICC-02/05-01/

09-95.

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Statute was unlawful because Sudan was a state non-party.

It has also been

argued that that these kinds of actions could deteriorate the situation in the

region, which over time has gained a fragile stability.

What is important is that the arrest warrant was issued also for the crime of

genocide, and thus the Convention was directly applicable in this case. This is

a paradox because throughout the history of the Convention almost every pros-

ecutor has deliberately avoided a genocide indictment, since it is much more dif-

ﬁcult to prove and to sentence a person for this crime due to the dolus specialis.

However, in this case it was a way to facilitate the proceeding because Sudan is

a signatory of the Convention and is bound by the Convention to punish and

prevent genocide, which also includes the obligation to turn over a suspect to

the international court based on Article VI.

Although the arrest warrants are still outstanding and the Sudanese president

has visited numerous countries (e.g. Kenya, Chad, Djibouti, and Malawi) who

are parties to the Rome Statute, so far he has never been arrested and turned

over the ICC.

Prospects for the future

The accountability of states

It is clearly stated, both in the Convention and in numerous different inter-

national treaties, that public ofﬁcers are accountable for genocide and they are

not protected either by immunity or the “act of state”defence. There is another

side of the coin, though, and that is the accountability of states. According to

the famous Judge Jackson rule stated in the Nuremberg judgment, the crime is

committed by men, not abstract entities, but also it is not just the sum of acts

of many people that makes genocide such a heinous crime. It usually also uses

all of the instruments that states are equipped with.

It may seem odd that the Convention does not explicitly forbid states from

committing genocide, although one could deduce such a rule through other art-

icles (e.g. Article IX or Article I). This peculiar omission is not accidental, how-

ever, but is a result of meticulous negotiations at the time the Convention was

being created.

In my view, only a synergy of personal and state accountability

can guarantee real justice for victims of genocide and for the history of human-

kind. We could dismiss the “act of state”defence by recalling Judge Jackson’s

quote, and by holding a state accountable we could dismiss another popular

34 W.A. Schabas, The International Criminal Court: A Commentary on the Rome Statute,

Oxford: Oxford University Press 2010 p. 451; P. Gaeta, “Immunities and Genocide”in The

UN Genocide Convention: A Commentary, edited by Paola Gaeta, Oxford: Oxford University

Press 2009, pp. 323–325.

35 J. Quigley, The Genocide Convention: An International Law Analysis, Farnham: Ashgate,

2006, pp. 222–226.

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defence of “margin or margins”or “it was just a few black sheep in a family”.

By proving that it was actually a state and that the genocide was committed at

the highest level of the machinery of power, or at least tolerated, we could also

enable victims to receive at least material compensation. The same issues were

raised by the United Kingdom during a debate about the Convention at the

time it was being created.

The United Kingdom strongly opted for the view

that the responsibility of states should be imposed, and thus states would be

accountable not only for punishing perpetrators of genocide and prevent it, but

also for the genocide itself. The United Kingdom’s efforts to support this view

have partly succeeded, since the responsibility of states was expressed more

explicitly in Article IX of the Convention. However, there are serious doubts

whether the responsibility of a state under Article IX is considered to be a penal

or civil sanction.

The fact that states could not be sued under the Convention

was relied upon by Yugoslavia during its trial in a case ﬁled by Bosnia and

Herzegovina.

In the end, however, the Yugoslavian motion was dismissed by

the ICJ, and thus a precedent was created.

American practice and doctrine is traditionally against prohibition of the “ofﬁ-

cial capacity”defence. The American judicial system also opposes the depriv-

ation of immunity even for former heads of state and even in genocide trials –

an observation that is a consequence of the judgments of Robert Mugabe of

Zimbabwe

and Jiang Zemin of China.

During the voting over Article IV,

the American representatives abstained, arguing that this kind of provision must

not be applied to heads of states, and especially not to the president of the

United States.

It is stated in the doctrine that usually a trial of a head of state

is also a trial of the country’s politics (as heads of states emanate it) as a whole,

and thus it impacts substantially upon the country’s sovereignty

and is a de

36 UN GAOR, Summary Records of Meetings 21 September –10 December 1948, pp.

342–344, UN doc A/C/.6/SR.95.

37 N. Robinson, The Genocide Convention: A Commentary, New York: Institute of Jewish Affairs

1960, pp. 101–102.

38 Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Bosnia and Herzegovina v. Yugoslavia), preliminary objections, Memorial of Yugoslavia,

June 1995, p. 130.

39 Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Bosnia and Herzegovina v. Yugoslavia), preliminary objections, Judgment, 1996, ICJ Rep.,

p. 595, p. 616.

40 United States Court of Appeals, Second Circuit, Tachiona v. United States, No. 03–6033(L),

03–6043(XAP), 6 October 2004.

41 United States Court of Appeals, Seventh Circuit, Wei YE v. Jiang ZEMIN, No.

03–8 September 3989, 2004.

42 UN DOC. A/C.6/SR.93.

43 G. Conso, USA, and ICC (Part II), Are There Hopes of Reconciliation? The basic reasons for

US Hostility to the ICC in Light of the Negotiating History of the Rome Statute, 3 Journal

of International Criminal Justice, 2005, p. 315.

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facto trial between countries, not individuals,

and ﬁnally that the Rome Statute

expressis verbis declares that the ICC possesses jurisdiction only over natural persons.

The American delegation has proposed to change the prohibition of the “ofﬁcial cap-

acity”defence to direct accountability of a state provided that two conditions are ful-

ﬁlled: the perpetrator would have to have acted within the scope of his/her ofﬁce,

and the state would consider and acknowledge this act as its own.

I suspect that

such an alteration would be highly detrimental to holding perpetrators accountable,

and also restrict potential legal procedures under such an article –whichwouldbe

highly unjust. One can easily imagine that in numerous cases such a consent would

not be granted since the administration that is charged with the genocide has not

changed; while in other cases the situation would be rather different (i.e. if administra-

tion has changed and the new administration is more willing to condemn the mem-

bers of the former one). This proposal, and its negative attitude towards holding

public ofﬁcials responsible, is even more alarming taking into account the active par-

ticipation of the USA in many armed conﬂicts all over the world. Such proposals sug-

gest an American will to evade its accountability or at least limit it, especially taking

into consideration its history and infamous enhanced interrogation techniques from

the so-called “Torture Memos”.

Also, the American government has separate agree-

ments with multiple states that assert that they will not surrender their citizens to the

ICC but to the American national courts, and the USA made a reservation to Article

IX of Convention (which concerns submission of cases to the ICJ), stating that the

USA must give a speciﬁc consent each time a party wants to ﬁle a suit against them.

In addition the USA is not a party to the Rome Statute.

Furthermore, in my opinion the view that the accountability of a state and the

personal accountability of perpetrators are interchangeable is greatly mistaken.

These two notions have substantially different functions. Only individual account-

ability guarantees that persons responsible would feel threatened that they could

be held accountable. It is easy to observe the consequences of a lack of personal

criminal responsibility in the actions of vast international companies. The lack of

such personal responsibility leads de facto to an overall lack of responsibility. Even

when companies are sentenced with enormous ﬁnes or compensations for the vic-

tims, the proﬁts they gain from such breaches often outweigh the costs.

44 M. Morris, Stany Zjednoczone i Międzynarodowy TrybunałKarny, Warsaw: Instytut Spraw

Publicznych 2004.

45 Article 25 of the Rome Statute.

46 UN DOC, A/CONF.183/C.1/L.90 from 16 July 1998.

47 Memorandum for William J. Haynes, II General Counsel, Department of Defense,

March 13.2002, Washington, DC 20520.

48 Multilateral Treaties deposited with the Secretary-General, pp. 131–132, UN DOC. ST/

LEG/SER.E/22. https://treaties.un.org/pages/Content.aspx?path=Publication/

MTDSG/Volume_en.xml (accessed November 2018).

49 See,forexample,R.Waters,GlaxoSmithKline’s $3 Billion Hit: Deterrent or Business Expense,

Forbes, 12 July 2012. www.forbes.com/sites/robwaters/2012/07/12/glaxosmithklines-3-bil

lion-hit-deterrent-or-business-expense/#7f33347228ef (accessed November 2018).

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Accountability of incumbent ofﬁcials in light of the Arrest Warrant case

and the recent proceedings of the ICC

During the Pinochet trial the British House of Lords declared that the state

immunity of a former head of state does not cover heinous international crimes

(in this case, torture).

While the end result of the extradition proceeding was

ultimately not to extradite, this was only due to the health condition of the

former dictator.

This is proof the traditional concept of laws is constantly

changing. During the discussion over the Pinochet case another autocratic ruler

who participated in the Rwandan genocide, the president of the Congo, Laurent

Kabila, was a guest of the French government, and during his visit he became

anxious about his immunity.

Also in the Arrest Warrant judgment, the court

stipulated that while the arrest warrant in question was issued, Abdoulaye Yero-

dia Ndombasi was deliberately avoiding certain routes while travelling to differ-

ent countries with the express purpose of avoiding arrest. One may presume

that these cases contribute to the reducing the sense of impunity, especially of

dictators, and prove that these kinds of measures are effective.

In this light, I disagree with the ICJ judgment in the Arrest Warrant Case

and consider it a lost opportunity. In international criminal law there is

a concept that there are obligations which cover every state, even if such a state

is not connected to a certain case, which are sometimes referred to as obliga-

tions erga omnes partes.

Provisions already exist granting a party not suffering

an injury the right to ﬁle a complaint on behalf of another party.

Furthermore,

with reference to human rights this rule has already been espoused by the Euro-

pean Court of Human Rights.

Taking into consideration that genocide is tan-

tamount to violating numerous human rights (the right to live being just

number one on this list) and is considered as the “crime of crimes”, we should

recognize its prevention and punishment as an obligation erga omnes partes.In

this light, it is difﬁcult for me to understand why the fact that arresting an

incumbent minister of foreign affairs results in consequent problems for the

functioning of a country should overweigh (according to ICJ) the gravity of vio-

lations of international humanitarian law. If we take into consideration how rap-

idly countries nowadays exchange their ministers or other representatives, it

50 C.L. Blakesley, Autumn of the Patriarch: The Pinochet Extradition Debacle and Beyond–

Human Rights Clauses Compared to Traditional Derivative Protections Such as Double

Criminality, 91 Journal of Criminal Law and Criminology, 2000, p. 15.

51 Ibid, p. 16.

52 M.J. Kelly, Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide

and the Trials of Slobodan Milosevic and Saddam Hussein, New York: Lang 2005, p. 81.

53 A. de Hoogh, Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into

the Implementation and Enforcement of the International Responsibility of States, The Hague

and Boston: Kluwer 1996, pp. 53–54.

54 International Covenant on Civil and Political Rights, art. 41, UNTS 999, p. 171.

55 Judgment of the European Court of Human Rights, in case Ireland v. Great Britain, ECHR,

series A, no. 25, p. 239.

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seem that when the absolute nature of the immunities was established the situ-

ation was quite different –the lack of absolute immunity respected by all the

states would result in many assassinations during international visits (while now-

adays in the worst-case scenario they may result in a legal trial). In addition,

states without all the modern tools and solutions could not adapt as quickly as

nowadays. If such a prominent ﬁgure as the American secretary of state (in this

case Rex Tillerson) could ﬁnd out that he was ﬁred by the American president

(Donald Trump) via a tweet,

I seriously doubt that the arrest of a signiﬁcant

public ofﬁcer could result in the collapse of a state as a whole.

What is more, in Article I of the Convention the contracting parties conﬁrm

that genocide is a crime under international law and that they are obligated to

prevent it and punish the perpetrators (even if the genocide took place during

peacetime). The sense of this provision is to assert that genocide should be com-

bated in every possible way by the contractual parties. While Lemkin has

acknowledged that the annihilation of protected groups is always a last resort to

destroy the group, and that genocide in fact is rational and the reasons behind

it are perceivable, it is nevertheless possible to prevent it without a war.

How-

ever, this cannot be achieved if the states are deprived of instruments to inﬂu-

ence potential perpetrators. The right of any country to address a breach of an

obligation erga omnes partes –even if the country addressing it is not directly

connected to such a breach –is inseparably related to this concept.

The institutions of international criminal justice play a pivotal role in the pre-

vention of violations of international humanitarian law. Lemkin has underlined

that without a set of concrete sanctions, the matter of the genocide and its pre-

vention is not a matter of international law but of international courtesy, or as

a precept of morality.

By conﬁrming the absolute rule of the immunity of

incumbent public ofﬁcials, the ICJ has enhanced the impunity of many perpet-

rators. Taking into consideration the situations listed by ICJ when ofﬁcials

could be held accountable (when tried in the country of origin, after the ofﬁcial

ceases to hold the position, when the country of origin agrees to waive immun-

ity, or if jurisdiction is speciﬁcally granted to an international tribunal), it can be

easily seen that they do not cover all the situations in which a potential genocide

could in fact be carried out. Such a regime would not be willing to be bound

by any international treaty concerning humanitarian law, and even more it

would not be willing to waive the immunities of its representatives, and only

after the regime falls (when in most cases the damage is already done) will the

representatives cease to perform their positions and international criminal

56 D. Mangan, Rex Tillerson Found Out He Was Fired as Secretary of State from President

Donald Trump’s Tweet, CNBC, 13 March 2018. www.cnbc.com/2018/03/13/tillerson-

learned-he-was-ﬁred-from-trumps-tweet.html (accessed December 2018).

57 Irvin-Erickson, Raphael Lemkin, p. 223

58 M. Królikowski, Odpowiedzialność karna jednostki za sprawstwo zbrodni międzynarodowej,

Warsaw: Wydawnictwo Sejmowe 2011, p. 49.

59 Irvin-Erickson, Raphael Lemkin, pp. 224–225.

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tribunals be established. For example, the Special Court for Sierra Leone has

made use of the arguments presented in the Arrest Warrant Case and because

of its international character (it was established by the UN and Sierra Leone) it

has claimed that the immunities ratione materiae could not guarantee impunity

for the former head of state Charles Taylor.

The importance of non-military methods of preventing genocide was under-

lined by Lemkin, which resulted in his struggles to include a provision in Article

VIII of the Convention granting the right of a party to turn to the UN’s Gen-

eral Assembly to undertake actions preventing a genocide.

He was aware that

if this right to intervene would be granted to the Security Council, the rule

could be rendered de facto inapplicable due to the veto of a single permanent

member of the Security Council, and in fact it is very difﬁcult to imagine an

international conﬂict in which none of the states which are permanent members

on the Security Council would not have an opposing interest which would or

could justify a veto. This proves Lemkin’s awareness of the importance of non-

military, but concrete, tools to prevent the crime of genocide on the one hand,

and also his awareness and profound knowledge of international relations and

the inability of states to act unanimously on the other. This is why such subtle

yet substantial instruments are crucial.

Especially taking into account genocide and its dolus specialis, granting abso-

lute immunity can result in irreparable losses. If the perpetrators (which are

usually state representatives and the state itself) possess this special intent of

destroying a group in whole or in part, the chances that they would intention-

ally resign from the destruction of such protected groups is illusory. Also,

these groups are usually minorities without their own states and they have

almost no instruments to signiﬁcantly inﬂuence public opinion. This is why

there should be an instrument to prevent genocide and other violations of

humanitarian law which is very speciﬁc, in contrast to vague declarations or

resolutions, while at the same time not being a “nuclear”option (which mili-

tary intervention clearly is, and which Lemkin called a “morally and legally

fraught enterprise”.

)

I am aware of the risks concerning the establishment of such a precedent, and

I suspect that shortly after it was created the most important states would try to

mitigate these risks and try to create new rules that would address their own

interests. Furthermore, international affairs are never ruled just by the law –the

strongest actors will impose their interests nevertheless. Taking into account

that even such a stable and long-established democracy as the USA struggles

sometimes to avoid its responsibility, a failure to include this subtle instrument

seems to be an overprotection of the ICJ’s ruling. In my opinion, international

criminal tribunals (especially the ICC) should act as the “conscience of human-

kind”and only by such ground-breaking verdicts could either the ICJ or ICC

60 Irvin-Erickson, Raphael Lemkin, p. 192.

61 Irvin-Erickson, Raphael Lemkin, p. 385.

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reinforce their authority. Due to their inability to enforce their verdicts,

the

only way that international criminal tribunals would actually matter is if they

possessed an authority that states could not ignore.

As we have frequently observed in the history of international criminal law, vari-

ous institutions begin to operate only after the damage is done, and even then they

sometimes have to establish very far-fetched justiﬁcations for the legality of their

actions, like in the Eichmann case (which does not mean that the trial was not

just). In the case of genocide, I consider it likely that an arrest of a dictator or

another important public ﬁgure that is an incumbent head of state could actually

happen (by a state which is very inﬂuential or moral or has its own interest in such

actions) in the future, and due to the viciousness of the crimes (i.e. using a moral

rather than a legal justiﬁcation) the rule of an absolute immunity could be broken.

We can observe, however, a lack of political will to impose such legal deci-

sions considering incumbent heads of states or other important political ﬁgures.

Even the ICC denied in the ﬁrst instance issuing an arrest warrant considering

a genocide allegation,

and only after the Appeals Chamber’s judgment was the

arrest warrant based on this allegation issued.

I suspect that the reluctance on

the part of the lower-instance body was motivated by an awareness of the gravity

of the charges as well as the new instruments that the prosecutor would be

equipped with, considering the possibility to use the Convention, which is bind-

ing on many states that are not parties to the Rome Statute. Even when a state

is willing to execute such a warrant, its actions are usually mostly verbal and

pre-emptive –it declares such a will publicly, which results in warning the pos-

sible perpetrator not to enter such a state.

Even though there were declar-

ations on the part of South Africa to enforce the arrest warrant and

consultations between the ICC and South African representatives wherein the

ICC urged South Africa to capture Omar Al Bashir during his declared stay in

2015, he arrived and left the country intact.

There are some minor inconveni-

ences in becoming such a persona non grata, like the impossibility to visit such

declaring states (which certainly impedes performing one’s public ofﬁce) or the

necessity to verify whether such a public ofﬁcial could cross intervening borders

62 See, for example, G.P. Barnes, The International Criminal Court’s Ineffective Enforcement

Mechanisms: The Indictment of President Omar Al Bashir, 34(6) Fordham International

Law Journal, 2011, p. 1585; N. Ali, Bringing the Guilty to Justice: Can the ICC be Self-

Enforcing?, 14(2) Chicago Journal of International Law, 2014, p. 441.

63 Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan

Ahmad Al Bashir of 4 March 2009 (ICC-02/05-01/09-2-Conf).

64 Judgment on the appeal of the Prosecutor against the “Decision on the Prosecution’s Appli-

cation for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”of 3 February 2010

(ICC-02/05-01/09 OA).

65 This concerns, for example, South Africa. Available at: www.sanews.gov.za/south-africa/sa-

obliged-arrest-al-bashir-says-ntsaluba (accessed: December 2018).

66 Pre-Trial Chamber II, Decision under Article 87(7) of the Rome Statute on the non-compliance

by South Africa with the request by the Court for the arrest and surrender of Omar Al Bashir of

No. ICC-02/05-01/091/536 July 2017of 6 July 2017(ICC-02/05-01/09).

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without the risk of being captured, but this still does not approach the goal of

capturing and potentially convicting perpetrators. Therefore, even the complying

states will usually do their best not to jeopardize their political situations, which

can be the result of capturing such an incumbent public ofﬁcial.

The issues concerning the Al Bashir arrest warrants are very complex. There are

doubts about purely legal factors, like whether the very non-speciﬁc referral by

the Security Council was sufﬁcient to overcome the legal immunity of the incum-

bent head of state, or whether the ICC could be considered in this case to be,

due to the said referral, an international criminal court with the power to pierce

the immunity shield (one of the exceptions mentioned in the Arrest Warrant

Case and in Article VI of the Convention).

In my opinion there are ample legal

arguments to adjudicate either way, thus they actually do not matter and could be

left to the scholars. What is really important is the political background of this

situation –the fact that the arrest of the incumbent head of state of Sudan could

destabilize the region and the interests that some other countries and organiza-

tions (especially the African Union

) represent. Also none of the most important

states (including the democratic USA) are even parties to the Rome Statute. This

does not create an atmosphere of compliance with the ICC’s decisions, and these

are the real reasons why the arrest warrants are not executed, even by parties to

the Rome Statute. These concerns were also expressed by Lemkin himself. He did

not want to establish a standing international criminal court because he believed

that the primary agents of power were states, not international law. However, he

considered that the acts of states were shaped by individuals and the values they

and the society that they represent share in common, which is something inter-

national law and rulings can inﬂuence.

De lege ferenda, the best solution would be for states to agree to capture

incumbent public ofﬁcials if they are suspected of committing genocide or other

violations of international humanitarian law, while at the same time creating

a special procedure for verifying such allegations, which could be created to give

the ICC a very limited amount of time to adjudicate –counted in days rather

than weeks, similar to rulings in contested elections. I doubt, however, that

states would agree to this solution.

Conclusions

As has been mentioned, the ICJ ﬁnally dismissed Yugoslavia’s motion and it

may seem that adding provisions concerning the responsibility of states would

be superﬂuous, but in my opinion de lege ferenda this rule should be declared

67 These concerns are expressed by, for example, S. Zappala, “International Criminal Jurisdic-

tion over Genocide”in The UN Genocide Convention: A Commentary, edited by P. Gaeta,

Oxford: Oxford University Press 2009, pp. 264–265.

68 AU Assembly Decision 366(XVII) § 5. Similarly in AU Assembly Decision 334(XVI) § 5.

69 Irvin-Erickson, Raphael Lemkin, p. 223.

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more explicitly. In the current legal state of affairs, victims have instruments to

receive compensation (which is the most signiﬁcant issue), but the other ratio

legis for such proclamations are rather symbolic. Such trials (against states in cor-

pore) are trials before history; i.e. if the court acknowledges the responsibility of

the state it will be strongly asserted that a speciﬁc country committed genocide.

Responding to the debate over the character of such a ﬁnding of responsibility,

I would say that it is civil in nature and quasi penal. It is civil because following

a guilty verdict the victims have a simpliﬁed route to receive compensation, and

sui generis penal because the fact that a given allegation of genocide is found to

be true is unambiguously expressed, but certainly no punishment of a criminal

nature (apart from the compensation) can be imposed on a state. That kind of

verdict would be immensely grave and controversial. One could say that we do

not need this symbolism, but I suspect that such a verdict would have concrete

consequences. Even with respect to Hitlerism and the Third Reich there still

appears every once in a while a book calling Hitler “a great leader”,

a politician claiming that Hitler did not know about the Holocaust,

or a mass-

movement of negationism (of the Holocaust). A verdict by an international tri-

bunal could be transmitted worldwide and would undermine such claims (if not

criminalize them), and also make atrocities committed by a state a widely dis-

cussed and disputed topic in heated public debates. This would have a slightly

smaller but similar impact as the commanders of the Allied countries showing

the concentration camps to local German people. These kinds of trials are cur-

rently possible, but separate legal acts and proper procedures could give them

substantial importance. Furthermore, it would become a standard to judge not

only speciﬁc perpetrators but also a state, and the amount of such verdicts

would increase. However, there is also a risk that these trials would be counter-

productive, as happened during the Slobodan Milosevic trial, whereby his popu-

larity actually increased, with only 33 percent of society believing in his guilt

after one year of the trial. He was even elected to the parliament.

Taking into consideration all the cases and provisions connected with the

matter of immunities, the actual accountability of the highest public ofﬁcials for

the most heinous crimes (genocide, war crimes, and crimes against humanity) is

still in my opinion more apparent than real. I would argue that that there are

only two situations wherein the perpetrators are actually punished. The ﬁrst is

when the “justice”is handed out on the basis of the emotions of the society

after the regime has collapsed, in proceedings the legality of which is highly con-

troversial or even without any trial whatsoever. Such were the cases of Romanian

70 Information accessible at: www.theguardian.com/books/2018/mar/26/childrens-book-

praising-hitler-as-amazing-leader-pulled-by-indian-publisher (accessed November 2018).

71 For example, Janusz Korwin-Mikke, a Polish Member of the European Parliament, in

May 2014 –see https://histmag.org/Korwin-Mikke-i-historia.-Czy-Hitler-nie-wiedzial-

o-Holokauscie-9553 (accessed November 2018).

72 Kelly, Nowhere to Hide, p. 117.

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dictator Nicolae Ceausescu (and his wife), Italian fascist Benito Mussolini, and

Colonel Gaddaﬁ. The other cases are when a regime is so compromised that

there are no supporters left –this was the case of all the Nazi trials, the Tokyo

war crimes trial, the ICTR, or the Saddam Hussein case. Frequently in the latter

situation trials are preceded by a military intervention which has effectively des-

troyed the regime and its apparatus.

Therefore, one could argue that the only situations whereby the perpetrators do

not enjoy impunity are those without any political controversies whatsoever. What

is highly ironic is in these cases usually the courts and tribunals show no remorse

about bending the law at their will –vide the case of Adolf Eichmann, who was

charged by a court of a country which did not exist when the atrocities were com-

mitted and by judges whose impartiality was at least questionable. On the other

hand, if a case is politically controversial (for example, the Arrest Warrant Case),

courts will either refuse to undertake legal steps (even if there are grounds for

doing so), or states will not comply with the judicial decision or even do their best

to avoid having to actually execute it (as in the Omar Al Bashir case). Frequently,

even if a precedential decision is issued the case is dismissed because of other mat-

ters –here we should recall that eventually Pinochet was not extradited due to his

health conditions and he was sent back to Chile in 2000, where he lived for six

more years and faced a few other accusations, all of which were dismissed because

of either his health condition or a lack of evidence. Another example is that of the

former Polish communist leader General Wojciech Jaruzelski, who faced numerous

trials, and even though he died more than 20 years after the communist system

had collapsed he in fact did not suffer any severe consequences. In all of these

cases the accused were incumbent public ofﬁcials and/or preserved some political

base, or at least had a substantial number of supporters. Frequently, the dictators

live in infamy and in exile, but safely and without legal proceedings, like Kaiser

William II after the First World War in Belgium and Mengistu Haile Mariam, the

Ethiopian president responsible for thousands or even millions of deaths in his

country, who now lives in Zimbabwe.

In evaluating those cases where the perpetrators were actually punished,

I must note that in each case the punishment occurred after the damage was

done, and the trials did not impede or limit the violations of human rights.

Therefore, in assessing the objectives of the Convention in the light of Article

IV, one can conclude that it partially punishes the crime of genocide, but in no

way prevents it. The only concrete means to stop such a violation of human

rights remains a humanitarian intervention.

It seems as though there are enough rulings on this matter and now we are

approaching a turning point –if the struggles of ICC eventually become fruitless (as

they have been until now), the authority of the Court in this matter will collapse,

but if the situation would somehow alter and the ICC’s decisions become enforced,

73 B. Baker, Twilight of Impunity for Africa’s Presidential Criminals, 25 Third World Quarterly,

2004, pp. 1492–1493.

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the overall outcome could be completely different. If in fact an incumbent head of

state is captured by one of the states and sent to The Hague for a trial, the inter-

national situation might well deteriorate, which would probably result in

a substantial number of victims and possibly in a civil or regional war. At the same

time, however, the precedent would be established –every dictator would fear the

ICC’s indictment and eventually this court would be able to resolve crises (at least

partially) all over the world. No doubt this would be a long and drawn-out process,

but the impact of such a situation would be vast. Certainly I am not contending

that such a sacriﬁce of real people’s lives is worth such a change. However, sooner

or later this kind of cruel precedent would need to be established, as that is the only

way to vest the authority to the ICC that the Court desperately needs. In the Omar

Al Bashir case the situation has changed –the dictator has lost his power and has

been under arrest in Sudan since April 2019. On the one hand that deﬁnitely ends

the opportunity to try an incumbent head of state by the ICC, but on the other it

is better for the authority of the ICC that he lost his power and is captured (based

on other allegations, and he will probably be tried in Sudan) than if he had main-

tained his position and the ICC’s arrest warrant was ignored for a number of subse-

quent years. Notwithstanding this, there is another solution: not to prosecute the

perpetrators but to change the Court itself, which would require the decision

makers to resign from setting such ambitious goals for the permanent ICC.

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6 Transnational corporations’

liability for genocide under

international law

Łukasz Dawid Dąbrowski

Introduction

Activities of business enterprises affect the human rights of employees, con-

sumers, and the communities in which they operate. This inﬂuence can be both

positive and negative. A positive impact can be displayed, for example, by

increasing access to employment or improving public services, or more generally

by delivering products, innovation, and services that can improve the living

standards for people across the globe. In turn, corporations can have a negative

impact by, for example, destroying people’s livelihoods, exploiting workers, pol-

luting the environment,

displacing communities (especially in the extractive

industries which require access to land for mining or other business activities),

by taking a part in the torture of prisoners in the custody of private military

companies, or by funding and supplying armed conﬂicts through various

avenues and business networks.

Given this variety of relationships, businesses

can be linked not only with domestic crimes, but also with international crimes,

and consequently businesses can have a profound impact on human rights. In

the literature it is frequently postulated that corporations cannot avoid responsi-

bility for the most egregious violations of law.

Crimes against humanity and genocide were included as a category of inter-

national crimes in response to the horrors of the Holocaust committed by Nazi

Germany. Since then the law has come a long way. When Raphael Lemkin

worked on the Convention on the Prevention and Punishment of the Crime of

Genocide of 1948 (hereinafter the “Genocide Convention”), the number,

1Ł.D. Dąbrowski, Human Rights Obligations of Enterprises under Public International Law, in

M. Sitek, A.F. Uricchio and I. Florek (eds.), Human Rights: Betweenness and Possibilities (Józe-

fów 2017), pp. 73–89.

2 J. Kyriakakis, Developments in International Criminal Law and the Case of Business Involve-

ment in International Crimes, International Review of the Red Cross (Autumn 2012), Vol. 94,

No. 887, p. 984.

3 See R.C. Slye, Corporations, Veils, and International Criminal Liability, Brook. J. Int’l

L. (2008), Vol. 33, p. 959.

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position,

and importance of companies were not as signiﬁcant as they are

today. Nevertheless

Lemkin’s belief that genocide was based on social processes led him to con-

clude that the best way to successfully prosecute the crime was through the

doctrine of joint criminal enterprise –or criminal conspiracy laws –that

were normally used to prosecute corporations and organized crimes.

Nowadays it is widely accepted that crimes under both national law and inter-

national criminal law can be committed not only by perpetrators linked to

a state, but also by non-state actors,

including corporations. It appears possible

to attribute any conduct of a natural person to a legal person,

such as torture;

cruel, inhuman, or degrading treatment; war crimes; crimes against humanity;

summary executions; prolonged arbitrary detention; and forced disappearances.

Some scholars have even postulated that corporations may be prosecuted for any

crime which they are capable of committing, even aiding and abetting rape or

murder.

However, the signiﬁcant issue posed in this chapter is not about deﬁn-

ing the scope of rights and freedoms which may be infringed by corporations,

but whether corporations can be found responsible speciﬁcally for the crime of

genocide, and the ways in which corporations can be held liable for that crime.

In this respect the chapter is aimed at ﬁnding answers to two main issues. First,

are corporations capable of committing the crime of genocide, and if so, in

which way? Second, are corporations subject to the Genocide Convention? And

if so, can they be held liable under international law?

The main method used in the chapter is formal-dogmatic. The chapter

focuses on the analyses, ﬁrst of all, of the provisions of the Genocide Conven-

tion, the Rome Statute of the ICC, and some regional human right regulations.

Beyond the analyses of binding documents, the chapter also focuses on basic soft

law regulations in the area of business and human rights, speciﬁcally the United

Nations Guiding Principles on Business and Human Rights.

4 See. W.H.A.M. van den Muijsenbergh and S. Rezai, Corporations and the European Conven-

tion on Human Rights, PaciﬁcMcGeorge Global Business & Development Law Journal (2012),

Vol. 43, p. 50.

5 D. Irvin-Erickson, Sixty Years of Failing to Prosecute Sexual Crimes: From Raphaël Lemkin at

Nuremberg to Lubanga at the International Criminal Court, in M.M. Connellan and

C. Fröhlich (eds.), A Gendered Lens for Genocide Prevention (Palgrave, 2017), p. 92.

6 V. Nerlich, Core Crimes and Transnational Business Corporations, Journal of International

Criminal Justice (2010), 8, p. 903.

7 See N. Nafﬁne, International Legal Personality, Collective Entities, and International Crimes,

in N. Gal-Or, C. Ryngaert, and M. Noortmann (eds.), Responsibilities of the Non-State Actor

in Armed Conﬂict and the Market Place: Theoretical Considerations and Empirical Findings

(Boston 2015), pp. 79–104.

8 M.J. Kelly, Prosecuting Corporations for Genocide Under International Law, Harvard Law &

Policy Review (2012), Vol. 6, p. 346; Nerlich, Core Crimes, p. 901.

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Corporate responsibility

In considering whether corporations can commit genocide, and in what way, we

should take into account not only the regulations stipulated in the Genocide

Convention. Since the adoption of the Convention in 1948 the approach to

many issues related to human rights has been changed and further developed

and reﬁned. States are still under an obligation to regulate relations between the

state and individuals and groups, and are obliged to protect the people residing

on their territory.

However, with the increased role of corporate entities in

wide-ranging global affairs, the issue of businesses’impact on the enjoyment of

human rights has also come to the fore. This is particularly visible in in area of

soft law regulations. All international and national actions, condemnations, sanc-

tions, prosecutions, interventions, and regulations, including soft law regula-

tions, are important prevention tools and can deter individuals who may be the

agents of genocide.

Soft law regulations may support the Genocide Conven-

tion, as in the words of Lemkin “the Convention is not only to punish genocide

but also to prevent it. (…). Only a combination of punishment and prevention

can lead to the proper result.”

There are a number of non-binding inter-

national guidelines addressing businesses and human rights. Over the past

decade, different organizations and institutions undertook many activities in the

area of businesses and human rights. Speciﬁc actions have been undertaken by

the Organisation for Economic Cooperation and Development (OECD), the

International Labour Organization (ILO), and the United Nations (UN).

In 1976, the OECD adopted the Guidelines for Multinational Enterprises

(updated 25 May 2011) to promote responsible business conduct consistent

with applicable laws. In 1977, the ILO developed its Tripartite Declaration of

Principles Concerning Multinational Enterprises (last updated in March 2017),

which calls upon businesses to follow the relevant labour conventions and

recommendations.

The Declaration provides direct guidance to enterprises on

social policy and inclusive, responsible, and sustainable workplace practices. The

next initiative was the UN Global Compact, which was proposed in Jan-

uary 1999 by the UN Secretary-General KoﬁAnnan.

The Global Compact is

the leading global voluntary initiative for corporate social responsibility, and

9 D. Irvin-Erickson, Protection from Whom? Tensions, Contradictions, and Potential in the

Responsibility to Protect, in E.D. Jacob (ed.), Rethinking Security in the Twenty-First Cen-

tury (Palgrave, 2017), pp. 105–119.

10 See D. Irvin-Erickson, Understanding Culture and Conﬂict in Preventing Genocide, in

M. Natarajan (ed.), International and Transnational Crime and Justice (Cambridge Univer-

sity Press, 2019), p. 336.

11 R. Lemkin, Totally Unofﬁcial: The Autobiography of Raphael Lemkin, ed. by D.-L. Frieze

(Polish edition 2018), p. 281.

12 Tripartite Declaration of Principles Concerning Multinational Enterprises 16.11.1977,

revised 17.11.2000, 28.03.2006 and 24.03.2017.

13 The UN Global Compact’s ten principles, www.unglobalcompact.org/what-is-gc/mission/

principles [accessed 21.05.2017].

Transnational corporations’liability 119

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addresses the issue of business and human rights. In August 2003, the UN Sub-

Commission on the Promotion and Protection of Human Rights approved the

Norms on the Responsibilities of Transnational Corporations and Other Busi-

ness Enterprises with Regard to Human Rights.

The norms reafﬁrm and

reinforce the declarations that have been made so far with regard to the human

rights responsibilities of business enterprises (e.g. the OECD guidelines and the

UN Global Compact), and the core guidelines and standards are contained in

this concise new document.

The UN Commission on Human Rights did not

act on the draft norms. Instead, it appointed, in July 2005 Professor John

Ruggie as the Special Representative of the Secretary-General on the issue of

human rights and transnational corporations and other business enterprises,

charged with the task of undertaking further study in the area of business and

human rights.

Ruggie’s work led to the development of a business and human

rights framework, which the Human Rights Council welcomed in June 2008.

The resulting guiding principles were submitted in March 2011 and endorsed

by the Human Rights Council in its resolution 17/4 of 16 June 2011. While

the Guiding Principles on Business and Human Rights are not binding inter-

national law,

they are widely viewed as the most authoritative global standards

in the area of business and human rights, and have an impact on other relevant

international frameworks that guide or direct business behaviour under national

laws and policies.

These soft law regulations reﬂect the global social expect-

ation that businesses should avoid harming people not only through their own

operations, but also through relationships with other entities such as suppliers,

joint venture partners, or governments.

These are only soft law regulations but

“non-binding standards are often invoked to show an evolution in acceptance of

the international responsibility of transnational corporations for human rights

14 Norms on the Responsibilities of Transnational Corporations and other Business Enterprises

with regard to Human Rights, Sub-Commission resolution 2003/16, U.N. Doc. E/CN.4/

Sub.2/2003/L.11 at 52 (2003).

15 K-H. Moder, Norms on the Responsibilities of Transnational Corporations and other Busi-

ness Enterprises with regard to Human Rights. Background paper to the FES side event at

the 60th session of the UN Commission on Human Rights on 25 March 2005, www.fes-glo

balization.org/geneva/documents/UN_Norms/25March04_UN-Norms_Background.

pdf, p. 1.

16 Dąbrowski, Human Rights Obligations, p. 76.

17 H. Clayton, Business and Human Rights: Businesses Doing More Than Domestic Law

Requires, Human Rights Research Journal (2011), 2, p. 1.

18 Guiding Principles on Business and Human Rights Implementing the UN “Protect, Respect

and Remedy”Framework, Human Rights Council resolution 17/4, 16 June 2011.

19 S. Jerbi, Assessing the Roles of Multi-Stakeholder Initiatives in Advancing the Business and

Human Rights Agenda, International Review of the Red Cross (2012), Vol. 94, No. 887,

p. 1043.

20 R. Davis, Preventing Corporate Involvement in Mass Atrocity Crimes: Implementing the UN

Guiding Principles on Business and Human Rights, Global Centre for the Responsibility to

Protect. Policy Brief (2016), www.globalr2p.org/publications/[24.01.2019], p. 2.

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obligations violations.”

Because the Guiding Principles are currently the most

up-to-date, and are quite effective as for a soft law regulation in practical terms,

the further part of the study deals with the regulations contained in the Guiding

Principles.

The Guiding Principles consist of 31 principles covering the three pillars of

the overall framework: states’duty to protect human rights, corporate responsi-

bility to respect human rights, and the need for victims of human rights abuses

to have access to remedies, both judicial and non-judicial. This chapter focuses

on the core principles of the second pillar. While the Guiding Principles do not

list the speciﬁc rights and freedoms which enterprises are obliged to respect,

Principle 12 indicates expressis verbis which international documents are relevant

to determine those rights and freedoms. At the same time the Guiding Prin-

ciples point out that those documents comprise a minimum of rights which

enterprises are obliged to respect.

In the ﬁrst place, the Guiding Principles mention the International Bill of

Human Rights, which consists of three different documents with different

degrees of legally binding force. The ﬁrst is the Universal Declaration of

Human Rights of 10 December 1948 (hereinafter sometimes “Declaration”).

As a UN resolution, the Declaration is of a non-binding nature, but never-

theless it is a milestone document in the history of human rights. The Dec-

laration created common standards of achievements for all people and all

nations, and sets out fundamental human rights to be universally protected.

The provisions of the UN Declaration of Human Rights have been inter-

preted by successive European Union governments and by the UN as apply-

ing also to corporations.

The Declaration is codiﬁed in international law

through the International Covenant on Economic, Social and Cultural Rights

and the International Covenant on Civil and Political Rights, both adopted

on 16 December 1966.

In the second place, the Guiding Principles mention the ILO’s Declaration

on Fundamental Principles and Rights at Work (herein after sometimes “ILO

Declaration”).

According to the ILO Declaration those fundamental prin-

ciples are:

the freedom of association and the effective recognition of the right to col-

lective bargaining, the elimination of all forms of forced or compulsory

labour, the effective abolition of child labour, and the elimination of dis-

crimination in respect of employment and occupation.

21 E. De Brabandere, Human Rights Obligations and Transnational Corporations: The Limits

of Direct Corporate Responsibility, Human Rights and International Legal Discourse (2010),

Vol. 4, No. 1, p. 78.

22 Kelly, Prosecuting Corporations, p. 345.

23 Adopted in Geneva, 18.6.1998, revised 15.6.2010.

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The ILO Declaration covers four main areas for the establishment of a social

“ﬂoor”in the world of work. These principles and rights have been expressed

and developed in the form of speciﬁc rights and obligations in conventions rec-

ognized as fundamental both within and outside the ILO. Each of these is sup-

ported by two ILO conventions, which together make up the eight ILO core

labour standards.

Like all agreements, the above conventions have to be rati-

ﬁed by states, and not all states have done so. For those that have not, the Dec-

laration makes an important new contribution. It recognizes that the Members

of the ILO, even if they have not ratiﬁed the conventions in question, have an

obligation to respect “in good faith and in accordance with the Constitution of

the ILO, the principles concerning the fundamental rights which are the subject

of those Conventions.”

The ILO Declaration refers to, inter alia, the OECD

Guidelines and EU regulations.

According to the Commentary to the Guiding Principles, depending on the

circumstances business enterprises may need to consider additional standards.

These additional standards may include the rights of individuals belonging to

speciﬁc groups or populations that require particular attention in instances

where they may suffer from adverse human rights impacts. The Commentary

refers to the UN instruments concerning the rights of: indigenous peoples;

women;

national, ethnic, religious, and linguistic minorities;

children;

per-

sons with disabilities;

and migrant workers and their families.

Moreover,

according to the Commentary, in situations of an armed conﬂict enterprises

should respect the standards of international humanitarian law (IHL). The

International Committee of the Red Cross has published an information bro-

chure called Business and International Humanitarian Law, which is intended

24 Convention No. 87 of 9.7.1948; Convention No. 98 of 1.7. 1949; Convention No. 29 of

28.6.1930; Convention No. 105 of 25.6.1957; Convention No. 138 of 26.6.1973; Conven-

tion No. 182 of 17.6.1999; Convention No. 100 of 29.6.1951; and Convention No. 111 of

25.6.1958.

25 ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up, adopted

by the International Labour Conference at its Eighty-Sixth Session, Geneva, 18 June 1998

(revised 15 June 2010), p. 2.

26 Directive 2014/95/EU of the European Parliament and of the Council of 22.10.2014

amending Directive 2013/34/EU as regards disclosure of non-ﬁnancial and diversity infor-

mation by certain large undertakings and groups, OJ L 330, 15.11.2014, pp. 1–9.

27 Guiding Principles on Business and Human Rights, 2011, p. 14.

28 The United Nations Declaration on the Rights of Indigenous Peoples of 13.9.2007.

29 Convention on the Elimination of All Forms of Discrimination against Women of

18.12.1979, UN Treaty Series, Vol. 1249, p. 13.

30 International Convention on the Elimination of All Forms of Racial Discrimination of

21.12.1965, UN Treaty Series, Vol. 660, p. 195.

31 Convention on the Rights of the Child of 20.11.1989, UN Treaty Series, Vol. 1577, p. 3.

32 Convention on the Rights of Persons with Disabilities of 13.12.2006, UN Treaty Series, Vol.

2515, p. 3.

33 International Convention on the Protection of the Rights of All Migrant Workers and Mem-

bers of Their Families of 18.12.1990, UN Treaty Series, Vol. 2220, p. 3.

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to inform businesses of their obligations and rights under IHL. The brochure

explains when IHL is applicable, what the main purpose of this body of law is,

and how businesses can conduct themselves in times of an armed conﬂict so as

to avoid violations of IHL.

The four Geneva Conventions of 1949 and their

Additional Protocols of 1977 constitute the main instruments of IHL. Numer-

ous other treaties address more speciﬁc topics related to conﬂicts, such as the

regulation and use of speciﬁc weapons. As mentioned earlier, human rights

treaties are traditionally understood as only binding on states, while IHL binds

both state and non-state actors (e.g. managers and staff of business enterprises)

whose activities are closely linked to an armed conﬂict.

There are no references to the Genocide Convention in the list included in

Principle 12 nor in the Commentary to the Guiding Principles. Thus there is

an ongoing debate between those who deem that the Genocide Convention

should be included in the list of the Guiding Principles (or at least in the

Commentary), and those who believe that this is not necessary. While the vast

majority of documents indicated in Commentary to the Guiding Principles are

devoted to the protection of individuals, this does not really change anything.

If corporations are obliged to respect and protect individual human rights,

then all the more are they obliged to respect the rights of a given group. Add-

itionally, Principle 11 lays down a general requirement for corporations to

respect human rights. This means that the responsibility to respect human

rights is a global standard of expected conduct for all corporations –they

should avoid infringing on the human rights of others and should address

adverse human rights impacts in activities which they are involved in. Corpor-

ations are obliged to prevent, mitigate, and where appropriate remedy the

infringement of human rights.

Notwithstanding the foregoing, according to Article 4 of the Genocide Con-

vention persons committing genocide or any of the other acts speciﬁed in the

Convention shall be punished, whether they are constitutionally responsible

rulers, public ofﬁcials, or private individuals. It has been argued that

[t]his regulation covers individual responsibility, but there is no textual dis-

tinction between natural or legal (juridical) in the reference to ‘persons’.

Also in the preparatory work of the drafters, there is no evidence one way

or the other that corporations as such were to be included or excluded

from the Genocide Convention’s reach.

34 Ten Questions to Philip Spoerri, ICRC Director for International Law and Cooperation,

International Review of the Red Cross (2012), Vol. 94, No. 887.

35 ICRC, Business and International Humanitarian Law: An Introduction to the Rights and

Obligations of Business Enterprises under International Humanitarian Law (Geneva

2006), p. 12.

36 Kelly, Prosecuting Corporations, p. 346.

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It is easy to imagine that in 1948 and in the period leading up to the approval

of the Genocide Convention the position, meaning, and in consequence the

responsibility of corporations was not such an important issue as it became later.

Regardless of the above, the same principles may be applied to the interpretation

of the Genocide Convention as in the case of the European Convention on

Human Rights in the scope of its application to legal persons. Both those docu-

ments do not contain a deﬁnition of “person.”From the legal standpoint, there

is division of “persons”into physical and legal. The “plain meaning of words”

rule would indicate that those terms cover both natural persons and legal per-

sons. If this rule works in the case of the European Convention it should, or

could, also be applied to the Genocide Convention.

Contrary to the above

documents, Article 1, paragraph 1, of the Inter-American Convention on

Human Rights imposes obligations on the states parties to respect and to ensure

that all persons can exercise the rights and freedoms recognized in the

Convention.

However, Article 2, paragraph 2, of this Convention deﬁnes the

term “person”as meaning “every human being.”

Similarly, the term “person”

was expressly deﬁned by the drafters of the Rome Statute creating the ICC as

meaning “natural persons.”Thus, while it is possible to take a more restrictive

interpretation, since no such speciﬁc clariﬁcation is included in the Genocide

Convention, corporations as legal persons should be deemed to be included

under the term “persons”in the Convention. In Lemkin’s works we can ﬁnd

descriptions of various types of genocide –political, social, cultural, economic,

biological, and physical. He also indicated the methods used to commit geno-

cide, including the destruction of symbols and cultural centres, such as churches

and schools. In other words, the general understanding of genocide in Lemkin’s

output is very wide. The legal deﬁnition, however, is rather narrow, and in the

years following the adoption of the Genocide Convention, it was interpreted

even more narrowly.

Nevertheless, both according to Lemkin’s intentions and

in today’s understanding of the duties of business entities, the obligations arising

from the Genocide Convention deﬁnitely are put on corporations.

The juxtaposition of the above regulations should not arouse any doubts that

the Genocide Convention binds corporations. Nevertheless, this raises a factual

issue: How could corporations be involved in genocide? In this regard, the

Guiding Principles could be helpful. In the above-mentioned second pillar of

37 It should be noted that this is not the only element that decides on the application of the

European Convention to legal persons.

38 See P.H. van Kempen, Human Rights and Criminal Justice Applied to Legal Persons. Protec-

tion and Liability of Private and Public Juristic Entities under the ICCPR, ECHR, ACHR

and AfChHPR, Electronic Journal of Comparative Law, Vol. 14.3 (December 2010), www.

ejcl.org/143/art143-20.pdf [accessed 29.05.2018], p. 29.

39 Ł.D. Dąbrowski, Entitlement of Legal Entities to Hold Rights under the Inter-American

Human Rights Protection System, International Community Law Review 21 (2019), p. 458.

40 A. Applebaum, Red Famine: Stalin’s War on Ukraine (London 2018), pp. 400, 402.

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the Guiding Principles (corporate responsibility), the relevant principle is

number 13. This principle states that

the responsibility to respect human rights requires that business enterprises:

a) avoid causing or contributing to adverse human rights impacts through

their own activities, and address such impacts when they occur, b) seek to

prevent or mitigate adverse human rights impacts that are directly linked to

their operations, products or services by their business relationships, even if

they have not contributed to those impacts.

The Commentary to this principle clariﬁes that

a business enterprise’s‘activities’are understood to include both actions and

omissions; and its ‘business relationships’are understood to include relation-

ships with business partners, entities in its value chain, and any other non-State

or State entity directly linked to its business operations, products or services.

From this regulation it follows that

business may be involved in human rights abuses in three main ways: 1)

a company may cause a crime if its actions solely and directly lead to such an

abuse, 2) a company may contribute to a crime either by acting in parallel with

other entities such that the cumulative effect of their behaviour causes the

crime, or by facilitating or motivating the commission of such abuses through

a business relationship, 3) a company’s operations, products or services may be

directly linked to a crime through the company’s business relationships,

although the company itself did nothing to cause or contribute to the abuse.

These regulations in Principle 13, and the threefold division of different ways

in which corporations may participate in human rights abuses, have been formu-

lated in a manner which could be applied to all kinds of human rights abuses on

either a national or international level.

In the literature,

some helpful criteria to distinguish corporate complicity in

international crimes from neutral business activities can be found in the 2008

International Commission of Jurists (ICJ) report on the involvement of corpor-

ations in international crimes.

According to this report

41 Davis, Preventing, p. 2.

42 W. Kaleck and M. Saage-Maas, Corporate Accountability for Human Rights Violations

Amounting to International Crimes, Journal of International Criminal Justice 8 (2010),

p. 721.

43 ICJ, Corporate Complicity &Legal Accountability, Report of the International Commission of

Jurists, Expert Legal Panel 011 Corporate Complicity in International Crimes, Vol. 1: Facing

the Facts and Charting the Legal Path (2008), available online at www.icj.org/IMG/Volu

me_l.pdf [accessed 31.1.2019], p. 9.

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a company should avoid conduct if it: 1) enables the speciﬁc abuses to

occur, meaning that the abuses would not occur without the contribution

of the company, or 2) exacerbates the speciﬁc abuses, meaning that the

company makes the situation worse, including where without the contribu-

tion of the company some of the abuses would have occurred on a smaller

scale, or with less frequency, or 3) facilitates the speciﬁc abuses, meaning

that the company’s conduct makes it easier to carry out the abuses or

changes the way the abuses are carried out, including the methods used,

the timing, or their efﬁciency.

The above conduct includes both actions and a failure to act, and various

forms of participation (e.g. assistance or encouragement). In this respect the ICJ

report is quite similar to the Guiding Principles. When a company solely and

directly causes a crime it means that a company enables a speciﬁc abuse which

would not have occurred without the contribution of the company. And

a company’s contribution may be deemed to make the situation worse if with-

out the facilitation (or motivation) of the company some of the abuses would

have occurred on a smaller scale, or with less frequency. These kinds of facilita-

tion may be done by act or omission, and encompass a company’s operations,

products. or services.

The best way to consider the various forms of participation by corporations in

genocide is to examine actual examples. The most uncontested cases of business

complicity in genocide are the Jewish, Kurdish, and Darfurian genocides. While

the ﬁrst concerns the horror of the Holocaust and is widely described in the lit-

erature, nevertheless it is examined in the next part of the chapter. In

the second case, in 1987 and 1988 Saddam Hussein attacked the Kurdish com-

munity living in Northern Iraq (the Anfal campaign) using chemical and regular

weapons. This resulted in thousands of deaths, disappearances, and the displace-

ment of people. Various national and international businesses were directly com-

plicit in this genocide. In particular, French and German businesses supplied

Hussein with the equipment and resources by selling specialized chemical-

industry equipment that was particularly useful for producing poison gas.

the case of genocide on the Christian population of Darfur in Sudan, the gov-

ernment’s actions led to the massacre of tens of thousands people in the

2003–2005 period and approximately 2 million displaced persons from 1999 to

2006. Mainly Canadian, Swedish, and Chinese corporations were involved in

this ethnic cleansing, forced displacement, extrajudicial killings, torture, rape,

and physical destruction of civilian homes in their respective oil extraction areas.

Most importantly, this complicity materialized through ﬁnancial and also logis-

tical, material, or infrastructure assistance to the human-rights-abusing troops

44 N. Stel, Business in Genocide: Understanding the How and Why of Corporate Complicity in

Genocides, Maastricht School of Management, Working Paper No. 2014/28, www.msm.nl/

resources/uploads/2014/09/MSM-WP2014-28.pdf [accessed 28.01.2019], p. 6.

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(e.g. servicing disabled military trucks, providing electricity lines to their bar-

racks, and even piping water to the army camps).

With respect to ﬁnancing, the case of the activities of banks, which in 1994

enabled the carrying out of the campaign of genocide, war crimes, and crimes

against humanity in Rwanda, should be noted. Banks allowed the transfer of

funds from the Rwanda Central Bank’s account to the Swiss account of a South

African citizen (a former secretary of the Prime Minister of Rwanda) who was

a director of an arms trade company. The funds that were thus transferred were

used to purchase, through Zaire, weapons and military equipment that were

used to commit crimes against the Tutsi population. Similarly, the activities of

banks helped the Argentinian junta and South African apartheid regime. It is

deemed that loans provided by banks to those regimes helped implement

a policy of growing military expenditures and that the regimes could not have

supported their systematic human rights abuses and torture apparatus without

the bank loans.

In another example, the oil company Shell supported the

Nigerian government in its torturing and killing of activists who protested

against the environmental damages that Shell’s operations caused in the Ogoni

Region of Nigeria in the early 1990s. In 1993 and 1994, the Nigerian military

was involved in a variety of human rights violations, as well as destroying and

looting property –allegedly with the assistance of an oil corporation.

It was

deemed that the company and its Nigerian subsidiary provided monetary and

logistical support to the Nigerian police and bribed witnesses to produce false

testimonies.

Another example is the use of corporate property to facilitate killing a local

community in Papua New Guinea (PNG). A mining company closed its activ-

ities in 1989 due to violent conﬂicts with local communities. Local people have

claimed that at the company’s request, the PNG military put down the revolt,

and soon thereafter imposed a military blockade on the Bougainville region to

secure the mine. Shortly after this incident, a decade-long civil war erupted. The

corporation allegedly supported and encouraged PNG’s blockade, which pre-

vented medicine, clothing, and other essential items from reaching the people of

Bougainville. The PNG government, allegedly using the mining company’s heli-

copters and vehicles, killed several thousand people in its effort to put down the

revolt.

The next example of the supposed involvement of mining companies in an

infringement of human rights concerns the alleged participation and involve-

ment of a company in crimes committed in the Democratic Republic of the

45 Stel, Business in Genocide, p. 8.

46 Kaleck and Saage-Maas, Corporate Accountability, p. 706.

47 Can companies be involved in genocide, war crimes and crimes against humanity? www.

p-plus.nl/resources/articleﬁles/Bedrijvenengenocide.pdf [accessed 29.01.2019], p. 2.

48 Kaleck and Saage-Maas, Corporate Accountability, p. 704.

49 Can companies be involved in genocide, war crimes and crimes against humanity? www.

p-plus.nl/resources/articleﬁles/Bedrijvenengenocide.pdf [accessed 29.01.2019], p. 2.

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Congo. In 2004, the town of Kilwa was engulfed by ﬁghting between the

Armed Forces of the Democratic Republic and a group of armed rebels. The

mining company’s staff were charged with facilitating these crimes by providing

transportation to the Armed Forces for the operation.

Even if not all of above situations involved genocide per se, they illustrate the

ways in which businesses can participate in such violations of human rights. The

examples show that the most likely ways for a company to be involved in

a genocide are through the provision of: ﬁnancing, material, infrastructure (pro-

viding the necessary means of transportation), human resources (private security

groups protecting the company’s compounds or assets), equipment, and infor-

mation to the perpetrator of the genocide, thus enabling and/or exacerbating

the genocide.

This means that the commission of these offences by

a corporation can be categorised at least as complicity in genocide, and maybe

even as a conspiracy to commit genocide (Article 3, points b and e, of the

Genocide Convention) by contributing, through a business relationship or

through its operations, products, or services to actions directly linked to such

a crime.

Corporate accountability

Over and above these issues there is the question whether corporations can be

held liable under international law. According to Article 6 of the Genocide Con-

vention persons charged with genocide or any of the other acts set out in the

Convention should be judged by a competent tribunal of the state in the terri-

tory in which the act was committed, or by such an international penal tribunal

as may have jurisdiction over the crime and the person.

So far, we have only one permanent criminal court –the ICC in The Hague.

According to Article 25 of the Rome Statute of the ICC, the Court may enter-

tain individual criminal responsibility over natural persons. This means that all

employees of a corporation could be subject to ICC scrutiny for the corpor-

ation’s commission of, or complicity in, a genocide.

This is possible if the

alleged illegal conduct is part of a situation of atrocity crimes that has fallen

under the jurisdiction of the Court by virtue of a proper referral or investi-

gation, unless such actions fall within the narrow parameters of the relatively

small number of situations of atrocity crimes being ofﬁcially investigated by

the ICC at the time.

50 Davis, Preventing Corporate, p. 3.

51 Stel, Business in Genocide, pp. 4, 5.

52 C. Kaeb, The Shifting Sands of Corporate Liability Under International Criminal Law, Geo.

Wash. Int’l L. Rev. (2016), Vol. 49, p. 377.

53 D. Scheffer, Corporate Liability under the Rome Statute, Harvard International Law Jour-

nal, Vol. 57 (Spring 2016), Online Symposium, p. 36.

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However, holding individual corporate ofﬁcials and employees criminally

liable may not adequately deter certain corporate wrongdoing and harm, and

what is more, there may not even be sufﬁcient individual culpability to success-

fully prosecute anyone individually.

Including corporations within scope of the Rome Statute was speciﬁcally con-

sidered and rejected during the UN talks in July 1998. Scheffer points out that

as the court was originally designed to hold natural persons accountable for

atrocity crimes, there was too little time to fully consider the proposal. Also,

at that time there were an insufﬁcient number of national jurisdictions that

held corporations liable under criminal law, as opposed to civil tort liability,

which has long been universal.

While a lot has changed since that time, obtaining approval for amendments to

the Rome Statute that would extend the ICC’s jurisdiction to cover corpor-

ations would be extremely difﬁcult to achieve. As Scheffer further points out

nations with economies that are fuelled by multinational corporations,

either as home states or host states, would likely oppose efforts to expose

these companies to criminal liability before the ICC. The potential eco-

nomic cost of a ﬁnding of corporate criminal liability, or even the possibility

of an ICC investigation in the future, could have devastating impacts on

a nation’s economy.

In addition to the ICC, and in response to a speciﬁc set of mass atrocities and

armed conﬂicts, the international community established the Tribunal for the

Former Yugoslavia, the Tribunal for Rwanda, and a series of so-called “hybrid”

tribunals in Cambodia, Sierra Leone, East Timor, and Lebanon. Each of these

international and ad hoc tribunals functioned under its own founding docu-

ment. Although there are some similarities between them, the regulations con-

tained in those documents are not identical.

Genocide is one of the key

crimes subject to prosecution before the Tribunal for the Former Yugoslavia,

the Tribunal for Rwanda,

and the Special Court for Cambodia, but the stat-

utes creating these organs do not provide for jurisdiction over corporations. The

example of the Tribunal for Lebanon presents a different situation. In the Al-

Jadeed case the Appeals Panel reafﬁrmed, on 8 March 2016, the existence of

corporate criminal liability under international law, and held that legal persons

54 Slye, Corporations, p. 963.

55 Scheffer, Corporate Liability, p. 38.

56 Ibid., p. 38.

57 P.J. Stephens, Collective Criminality and Individual Responsibility: The Constraints of Inter-

pretation, 37 Fordham Int’l L.J. 501 (2014), p. 504.

58 See M.A. Drumbl, Restorative Justice and Collective Responsibility: Lessons for and from the

Rwandan Genocide, Contemporary Justice Review (2002), Vol. 5 (1), pp. 5–22.

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fall under the jurisdiction of the Special Tribunal for Lebanon (although the

speciﬁc case ended in a verdict of acquittal).

However, there is currently no

international court or tribunal that can exercise criminal jurisdiction over trans-

national business corporations for genocide, as the Special Tribunal for Lebanon

was not devoted to this crime.

Regardless of the issue of international jurisdiction, the Genocide Convention

actually obliged a competent tribunal of the state in the territory of which an

act of genocide was committed to judge such acts of genocide (and acts related

to genocide). Therefore, in the ﬁrst place, companies should be prosecuted for

genocide in domestic jurisdictions for violations of domestic law. There is also

a view that corporations can be prosecuted domestically for a violation of inter-

national law, inasmuch as genocide is a jus cogens crime and any court –any-

where in the world –has jurisdiction (universal jurisdiction) over genocide and

may hear a case against a company as long as the court has criminal jurisdiction

over corporations.

It seems that in some countries this solution is possible. In

2000 Canada implemented key provisions of the ICC’s Rome Statute to the

Canadian Crimes Against Humanity and War Crimes Act. In 2002, provisions

were introduced into the Australian Commonwealth Criminal Code for the

prosecution of genocide, crimes against humanity, and war crimes. The offences

were introduced as a part of Australia’s ratiﬁcation of the Rome Statute of the

ICC.

These acts, together with domestic law regulations, which provide for

responsibility of corporations, would make it possible to prosecute business

entities for the above-mentioned crimes. Thus, a domestic prosecution for geno-

cide against a corporation would be possible in Canada and Australia if there is

a demonstrable connection between that situation and the respective country.

This means that the jurisdictional provisions of the Acts could be employed

based on the universal jurisdiction for jus cogens crimes like genocide.

In 2008

the Norwegian Penal Code incorporated provisions on war crimes, genocide,

and crimes against humanity. In this way, there is a possibility for a company to

be sanctioned where individuals acting on its behalf of it commit, or are compli-

cit in the commission of, genocide.

Criminalization of such corporate actions

is possible not only if they were committed on Norwegian territory, but the

Norwegian Penal Code also addresses the extraterritorial application of states’

59 Kaeb, The Shifting, p. 370.

60 See Article 2 of the Statute of the Special Tribunal for Lebanon, www.stl-tsl.org/en/docu

ments/statute-of-the-tribunal/223-statute-of-the-special-tribunal-for-lebanon [accessed

13.04.2020].

61 Kelly, Prosecuting Corporations, pp. 364–365.

62 J. Kyriakakis, Australian Prosecution of Corporations for International Crimes: The Potential

of the Commonwealth Criminal Code, Journal of International Criminal Justice 5 (2007),

p. 814.

63 Kelly, Prosecuting Corporations, pp. 364–365.

64 S. O’Connor, Corporations, International Crimes and National Courts: A Norwegian View,

International Review of the Red Cross, Vol. 94, No. 887 (Autumn 2012), pp. 1011, 1012.

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regulations to acts committed on behalf of an enterprise registered in Norway.

A number of other countries, including the Netherlands,

United Kingdom,

and Poland,

have incorporated the offences of genocide, crimes against

humanity, and war crimes into their domestic laws on the basis of universal jur-

isdiction, and also as applicable to legal persons.

In the case of universal jurisdiction, any court, anywhere in the world, has jur-

isdiction over genocide (committed anywhere in the world) and may hear a case

against a company so long as the court has criminal jurisdiction over corpor-

ations. However, it has been rightly pointed out that in order

to investigate the crimes committed on foreign territory, national authorities

may have to overcome legal and/or diplomatic hurdles before commencing

their investigations, or to obtain the necessary cooperation from the author-

ities of the foreign states. They may also lack any operational infrastructure

on the ground, which is necessary to conduct effective investigations on the

territory of a foreign country or to protect potential witnesses or their own

investigators.

Nonetheless, a national investigation, despite its many procedural imperfections

and difﬁculties, would constitute an attempt to obviate corporate impunity. This

reﬂects the determination to look for ways to hold companies legally account-

able, at least until jurisdiction is extended to international tribunals.

Regardless of whether companies will be judged by national or international

courts, the answer to the question posed at the beginning of this chapter –

whether corporations can be held liable under international law –is strongly

related to the subjective state of mind that must accompany the acts of certain

crimes in order to constitute a violation. In the general sense, businesses’

involvement in human rights violations may be unintentional; for example,

where they result from a lack of understanding of the relevant international

human rights standards or of the policies and processes that companies should

adopt to meet those standards in practice.

The above statement, however,

does not apply to genocide. According to Article 2 of the Genocide Conven-

tion, a genocide is a mass killing “committed with the intent to destroy, in

whole or in part, a national, ethical, racial or religious group.”

To commit the

65 O’Connor, Corporations, p. 1017.

66 See Kelly, Prosecuting Corporations, pp. 364–365.

67 Due to some limitations in the Act of 28 October 2002, on the Liability of Collective Entities

for Acts Prohibited Under Penalty (ofﬁcial Journal 2018 r.no 703, 1277), it seems to be very

difﬁcult.

68 See Kyriakakis, Australian Prosecution, p. 819.

69 R. Gallmetzer, Prosecuting Persons Doing Business with Armed Groups in Conﬂict Areas,

Journal of International Criminal Law, Vol. 8 (2010), p. 948.

70 Davis, Preventing Corporate, p. 6.

71 Stel, Business in Genocide, p. 3.

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crime of genocide there must be a speciﬁc intent to destroy the population in

whole or in part; hence the requirement is raised from a general intent to

a speciﬁc intent. A mere showing of motive to commit genocide is not

enough.

The speciﬁc intent required for genocide limits the scope of applica-

tion of international core crimes, at least in practical terms.

When we add to

this common requirement the fact that in many domestic legal systems only

criminal acts of organs (as designated by law or the organizational documents)

or representatives (i.e. those that received a delegation of power from an organ)

can be imputed to the corporation,

the situation is even more complicated.

In most cases, when one seeks to assign responsibility to business leaders or

corporate employees, there are two main questions that need to be answered, to

wit: (1) Was there any factual link between the provision of materials, goods, or

services and the perpetration of an international crime?; and (2) Did the busi-

ness executives or other corporate employees have at least knowledge that the

international crime would be committed by the principal perpetrator

by means

of using the materials, goods, or services of the company?

After World War II the indictment of 24 former Nazi ofﬁcials was directed

against them both individually and as members of any of the groups or organisa-

tions to which they respectively belonged. In three other cases of the so-called

“Subsequent Nuremberg Trials”before US military tribunals, high-ranking cor-

porate ofﬁcers and owners of the IG Farben trust, the Flick trust, and the

Krupp ﬁrm were indicted for atrocity crimes committed by the SS. Also, in the

1946 Zyklon B case a British military tribunal convicted two businessman for

aiding and abetting murder.

The Tribunal for Rwanda and the Tribunal for

the Former Yugoslavia adopted “joinder”indictments and the concept of “joint

criminal enterprise,”respectively, to ensure that all individuals involved in the

crime perpetrated shared liability for the crime.

However, in all the above

cases the focus remained on individual criminal accountability: in military cases,

the responsibility was imposed on the commanding ofﬁcer; in corporate cases,

the responsibility was imposed on the leading corporate ofﬁcials. In cases of

international corporations, the principles should be reversed –the object of

prosecution should be the organization, not the commanding corporate

ofﬁcer(s).

In the above-mentioned cases, although the tribunals did not con-

vict corporations but only individuals, they recognized that the standard of

knowledge is crucial for the conviction of individual corporate ofﬁcers. In the

72 Kelly, Prosecuting Corporations, p. 357.

73 Nerlich, Core Crimes, p. 908.

74 C. Kaeb, The Shifting, p. 382.

75 H. Vest, Business Leaders and the Modes of Individual Criminal Responsibility under Inter-

national Law, Journal of International Criminal Justice 8 (2010), p. 53.

76 Kaleck and Saage-Maas, Corporate Accountability, p. 701.

77 J. Balint, Transitional Justice and State Crime, Macquarie Law Journal, Vol. 13 (2014),

p. 157.

78 Kelly, Prosecuting Corporations, p. 349.

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Krupp case, the tribunal recognized that guilt must be personal. In the Flick

case, the tribunal convicted two civilian industrialists for knowingly using their

“inﬂuence and money”to further the activities of the SS. In the Farben case,

pharmaceutical corporate executives were acquitted as there was no evidence

that defendants knowingly participated in the planning, preparation, or initiation

of a crime. In that case the executives were unaware of the criminal purposes for

which the products of the company were being used.

It is surely necessary to agree with Nerlich that the seriousness and magnitude

of the crime of genocide requires, at least in practical terms, some involvement

of a state or a state-like entity. Thus, under normal circumstances it is unlikely

that a transnational business corporation could be held responsible for genocide

without the involvement of a state or state-like actor.

Without the harnessing

of the state and civil institutions, the harm perpetrated would have been of

a different dimension.

The result in mass atrocities would not be materially

possible without people (institutions) who have the capacity to foster public

power and have the political institutions and resources to knowingly participate

in a program that will result in crimes against humanity and genocide.

This

means that the speciﬁc intent requirement should be interpreted adequately to

the speciﬁc context of the crime committed. In most cases particular business

activities can only be looked at through the prisms of assistance or complicity,

especially aiding and abetting, which are most readily transposed to the business

case. The crime of aiding and abetting is commonly classiﬁed as an accessorial

or derivative form of criminal responsibility. Viewed in this way, the accomplice

derives his liability from the primary actor with whom he has associated

himself.

Under customary international law, it is sufﬁcient if a person provides

assistance in circumstances wherein they know of the likelihood that their action

will assist in the commission of an international crime.

A corporation may

assist in a genocide by providing a variety of methods; by procuring means

(such as weapons); by knowingly aiding and abetting; and by instigation. At

least knowledge and approval must be shown in order to bring a case for com-

plicity. In other words, “Did the business entity know or have the possibility to

know (i.e. should have known) that its business activities would contribute to

carrying out an international crime?”Also, the ICJ in the above-mentioned

report indicated that corporate complicity in international crimes takes place

when the company or its employees actively wish to enable, exacerbate, or facili-

tate the gross human rights abuses; or even when, without desiring such an

79 Kelly, Prosecuting Corporations, pp. 352–353.

80 Nerlich, Core Crimes, p. 906.

81 Balint, Transitional, p. 160.

82 D. Irvin-Erickson, Prosecuting Sexual Violence at the Cambodian War Crimes Tribunal:

Challenges, Limitations, and Implications, Human Rights Quarterly, Vol. 40, No. 3 (2018),

p. 584.

83 Vest, Business, p. 56.

84 Kyriakakis, Developments, p. 997, 998.

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outcome, they know or should have known from all the circumstances of the

risk that their conduct will contribute to the human rights abuses, and were wil-

fully blind to that risk.

In particular, the responsibility of corporations for

genocide should be based on a legal ﬁction as regards fulﬁlment of the special

intention. This presumption should be based on recognition that if

a corporation participated in the commission of the crime with knowledge (or

this knowledge should have been known from all the circumstances) about the

intention of the principal offender, it had the same intention as this offender. In

other words, criminal liability should be constituted by actions, and not by what

states, groups, and/or their leaders say they intend to do through their state-

ments of plans or their policies –it is the act itself that constitutes the intent,

not the statement or declaration of that intent.

In a general sense anyone

caught aiding or abetting genocide should take responsibility in a like manner as

the principal offender. In this regard the principle of a “joint criminal enter-

prise”could be helpful. As Irvin-Erickson noted:

As legal scholars have recently pointed out, the doctrine of joint criminal

enterprise can allow to place greater emphasis on indirect and circumstantial

evidence, without having to meet the highly restrictive requirement of

showing that a defendant held clear prior intent to commit genocide before

he or she acted.

From this point of view corporations could be liable for the crimes of their

employees.

Conclusions

As the economic and political power of corporations expands, there is increasing

recognition that corporations should take greater responsibility for their

actions.

The lack of jurisdiction by an international criminal tribunal over cor-

porate crime per se in no way relieves the corporations of their international

legal obligations.

Although corporations do not have formal participatory roles in the cre-

ation, shaping, and termination of international law, a signiﬁcant and grow-

ing number of domestic judicial opinions have recognized that corporations

can have duties under treaty-based and customary international law, includ-

ing relevant human rights law, the laws of war, prohibitions of forced

85 ICJ, Corporate Complicity, p. 9.

86 Irvin-Erickson, Prosecuting Sexual Violence, p. 583.

87 Irvin-Erickson, Sixty Years, p. 92.

88 Kelly, Prosecuting Corporations, p. 340.

89 Nerlich, Core Crimes, p. 896.

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disappearances, prohibitions of crimes against humanity, slavery, and the

prohibition of genocide.

In light of the recent soft law regulations, changes in states’law, and judicial

developments, it no longer seems to be a matter of whether corporations are

liable under international law, but rather how such liability would be imple-

mented –in other words, what the material elements for liability are and what

an effective penalty structure would look like.

Nowadays corporations cannot

claim that they were unaware that they enabled genocide –corporations must

be aware of what they are doing. As Franck notes:

The intention of the Genocide Convention is to provide both for punish-

ment of individuals who participate in a genocidal enterprise and for the

responsibility of corporations which put the machinery and resources of the

nation at the disposal of such an enterprise.

But what does it mean to hold a corporation criminally liable? In other words,

what penalties are appropriate to sanction a corporation criminally convicted of

an international crime? Penalties which should be considered include ﬁnes,

restraints, structural injunctions, publicity, judicial surveillance and transparency

initiatives, equity awards, prohibition from operating in a particular country, and

dissolution. Fines are the most common, but can be imposed through civil

liability.

Some scholars argue that because corporations possess both an indi-

vidual dimension and an institutional dimension, the accountability process

should be integrated and contain both criminal liability for key individuals, and

civic liability for key institutions, both state and non-state.

In any case, there

is a general agreement that monetary sanctions have proven inadequate to con-

trol corporate behaviour, and in addition could be viewed as commoditizing

moral values, which can have perverse consequences.

At the other end of the

spectrum is the dissolution of the company, which raises two related questions –

which admittedly are based on the grounds of responsibility of states

but are

appropriate also in the case of business entities –namely: Is it fair that the entire

90 J.J. Paust, Responsibilities of Armed Opposition Groups and Corporations for Violations of

International Law and Possible sanctions, inN. Gal-Or, C. Ryngaert, and M. Noortmann

(eds.), Responsibilities of the Non-State Actor in Armed Conﬂict and the Market Place. Theor-

etical Considerations and Empirical Findings (Boston 2015), p. 109.

91 Kaeb, The Shifting, p. 402.

92 See T. Franck, Individual Criminal Liability and Collective Civil Responsibility: Do They

Reinforce or Contradict One Another? 6 Wash. U. Global Stud. L. Rev. 567 (2007), pp.

568, 570.

93 Slye, Corporations, pp. 970, 971.

94 Balint, Transitional, pp. 157, 159, 160.

95 C. Kaeb, The Shifting, pp. 373, 390.

96 See Franck, Individual Criminal Liability, pp. 568, 570.

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corporation be held accountable for actions initiated by its leaders and executed

by its organs? Would such a ﬁnding of corporate responsibility not be likely to

impose an unfair burden on all its employees, regardless of whether they did, or

did not, support or tolerate the acts of the regime that had violated the prohib-

ition against genocide? In other words, the penalties imposed should not affect

people who had nothing to do with the crime.

And should all kinds of behav-

iours be attributable to a corporation, or only acts and omissions that are some-

how linked to its business activities? In various states, there is a limitation of the

liability of legal persons to activities that were undertaken “on account”or “for

the beneﬁt”of the company.

The above issues raise a further question: Should

a company be held responsible for the behaviour of all of its employees, regard-

less of the “guilt”of speciﬁc corporate employees? So far, there are more ques-

tions than answers. Some of those questions –e.g. those concerning appropriate

penalties –may be considered on a case-by-case basis by the proper court or

tribunal. In the case of other issues, more deﬁnitive solutions must be found

over time. In any case, the interpretation of existing regulations, and the regula-

tions themselves, should evolve over time and adapt and stand up to the new

challenges of our times.

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Part III

Challenges and new

developments

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7 Probing the boundaries of the

Genocide Convention

Children as a protected group

Ruth Amir

Introduction

As Raphael Lemkin noted, genocide by forcible child transfer is an age-old

phenomenon that peaked with modernity.

The late-fourteenth-century dev-

shirme system of the Ottoman Empire targeted Christian boys from the Balkan

provinces, converted them to Islam, and enlisted them to serve the Ottoman

government. Oliver Cromwell’s 1656 program for the removal of Irish chil-

dren was aimed at bringing them up as Protestants. The Kheokho and San

children were forcibly transferred into Boer society as Indigenous labourers to

address the shortage of slaves on the frontier during the eighteenth century.

In the latter decades of the nineteenth century, Indigenous children in the

United States, Canada, and Australia were forcibly removed to residential/

boarding schools and foster and adoptive white families, a practice which con-

tinued throughout the greater part of the twentieth century.

In addition, Ire-

land’s Magdalen Laundries operated from the eighteenth to the late twentieth

century as penitentiary institutions for so-called “fallen women.”Babies born

to these women were forcibly taken for adoption. Similarly, Britain’s child

migrant program transferred more than 130,000 children from deprived back-

grounds to its former colonies, mainly Australia and Canada, between the

1920s and 1970s.

These and similar programs were conveyed as an opportunity for a better life

for the children of problematized minority groups. With the growing realization

of the qualities of childhood, namely both children’s helplessness and their

future potential for the state and society, modern states passed various laws for

the “protection”of children and even began to intervene in the relations

between parents and their children.

The impact of war on children, slavery, and the trafﬁcking of women and chil-

dren became matters of international concern in the aftermath of the First

World War. The Convention to Suppress the Trafﬁcking of Women and

1 Raphael Lemkin and Steven L. Jacobs, Lemkin on Genocide (Lexington 2011).

2 The last residential school in Canada closed down in 1996.

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Children and the Convention to Suppress Slave Trade and Slavery reﬂected

modern humanitarianism.

The League of Nations’earliest involvements in the

ﬁeld included the Rescue Movement established by Armenian individuals and

groups, and the American Near East Relief, for the recovery and rehabilitation of

women and children forcibly transferred to Muslim households, sweatshops, state

factories, farms, or brothels.

As Keith Watenpaugh has argued, the League’sofﬁ-

cials in the ﬁeld interpreted these forcible child and women transfers as part of the

Ottoman Empire’s general plan to destroy the Armenian people.

The RuSHA

case at the Nüremberg International Military Tribunal further afﬁrmed the gravity

of forcible child transfers in the eyes of the international community. Both cases

paved the way for the protection of children and development of the notion of

children’s rights as an area of concern for international law.

Article II(e) of the United Nations’Convention on the Prevention and Pun-

ishment of Genocide (UNGC) prohibits the act of “[f]orcibly transferring chil-

dren of the group to another group.”This forcible transfer clause (FTC) is the

most neglected aspect of the UNGC.

The FTC has so far received scant atten-

tion by genocide scholars, nor has it been included in an indictment by any

international criminal tribunal. Although the Akayesu Chamber of the Inter-

national Criminal Tribunal for Rwanda (ICTR) and the Preparatory Commis-

sion for the International Criminal Court (ICC) outlined the crime’s physical

elements, some open questions remain.

In recent years, the crime of forcible child transfer has taken a gruesome turn

in the form of conscripting and enlisting child soldiers as combatants in hostil-

ities, as well as using them as human shields, suicide bombers, cooks, intelli-

gence collectors, clerks, and sex slaves. So far, the ICC has treated these cases as

war crimes regardless of whether the accused was also indicted for genocide.

This raises the ever-present inter-temporal legal dilemma, which applies to

3 International Convention for the Suppression of the Trafﬁc in Women and Children (adopted

30 September 1921, entered into force 15 June 1922) 9 LNTS 415; Convention to Suppress

the Slave Trade and Slavery (adopted 25 September 1926, entered into force 9 March 1927)

60 LNTS 253.

4 Keith David Watenpaugh, “Between Communal Survival and National Aspiration: The League

of Nations and the Practices of Interwar Humanitarianism,”in Cyrus Schayegh and Andrew

Arsan (eds), The Routledge Handbook of the History of the Middle East Mandates (Routledge

2015) 41, 47ff.

5 Watenpaugh (n 4) 47.

6 Keith David Watenpaugh, “The League of Nations’Rescue of Armenian Genocide Survivors

and the Making of Modern Humanitarianism, 1920–1927”(2010) 115(5) American Histor-

ical Review 1315.

7 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 Decem-

ber 1948, entered into force 12 January 1951) 78 UNTS 278 (UNGC).

8Prosecutor v Akayesu (Judgment) ICTR-96-4-T, T Ch I (2 September 1998) 509 (Akayesu);

“Report of the Preparatory Commission for the International Criminal Court, Addendum Part

II Finalized draft text of the Elements of Crimes”PCNICC/2000/1/Add.2 (2 Novem-

ber 2000) 7.

142 Ruth Amir

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whether crimes of international law are “frozen”in time or are to be interpreted

with respect to relevant and applicable legal developments.

Against this backdrop, this chapter examines the applicability of the FTC to

the conscription and enlistment of child soldiers. Conscription and enlistment of

child soldiers was recognized by the UN Security Council as one of six grave

violations against children.

This chapter argues, based on an analysis of histor-

ical and current forcible child transfer cases, that there is need to extend the

protection from forcible transfer granted by the UNGC to children of any iden-

tiﬁable group of persons. Highlighting the gravity of conscription and enlist-

ment of child soldiers when perpetrated with the intent to destroy the group as

such in violation of the UNGC Article II(e) is likely to act as a deterrent and

contribute to prevention. Moreover, the protracted processes in the ICC in

cases involving children call for the establishment of Communications and

Rapid Inquiry Procedures under the International Impartial and Independent

Mechanisms (IIIMs). Conducting these procedures in a timely manner is espe-

cially crucial with respect to child victims.

The ﬁrst section of this chapter discusses the theory and jurisprudence of the

FTC within the UNGC. The second discusses the special protected status of

children in international law. The third extracts some forcible child transfer

cases and hypothetically applies the FTC. The fourth discusses ICC child sol-

diers’cases. The chapter concludes with a proposal to amend the UNGC so as

to support the recognition of children as such as a protected group.

The FTC: theory and interpretations

The FTC is indeed the most neglected aspect of the UNGC. It was referred to

as “enigmatic,”purportedly “passed almost as an afterthought,”and “a remnant

of cultural genocide,”excluded from the UNGC by a majority of the drafters’

votes.

I have argued elsewhere that the FTC is grounded in a mixed conse-

quentialist and deontological ethical reasoning compared to the deontological

underpinning of Articles II(a–d) and the UNGC as a whole.

Three types of

arguments help to unpack the drafters’actual intent to protect children from

9 Leena Grover, “A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of

Crimes in the Rome Statute of the International Criminal Court,”(2010) EJIL 21 543,

579–81.

10 “Children and armed conﬂict: Report of the Secretary-General”UN DOC A/72/361–S/

2018/465 (16 May 2018) https://undocs.org/s/2018/465 [accessed 20 January 2019]

(Children and Armed Conﬂict).

11 William Schabas, Genocide in International Law: The Crime of Crimes (Cambridge University

Press 2000), 175; Antonio Cassese, Cassese’s International Criminal Law (Third edn, Oxford

University Press 2013), 117.

12 Ruth Amir, “Killing Them Softly: Forcible Transfers of Indigenous Children”(2015) 9(2)

Genocide Studies and Prevention: An International Journal 41 (Amir 1); Ruth Amir, Twenti-

eth Century Forcible Child Transfers: Probing the Boundaries of the Genocide Convention (Lex-

ington 2019), 35‒65 (Amir 2).

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forcible transfers.

First, the FTC grants protection from forcible transfer only

to children of the four protected groups. It therefore addresses children as

a sub-group of these protected groups, based on an age criterion. Second, in

recognizing children’s rights to grow up in their family and group, the FTC

undertakes a rights-based approach as opposed to the duty-based deontological

ethic of Articles II(a-d) and the UNGC as a whole. Finally, recourse to the

UNGC travaux préparatoires and other supplementary texts and interpretations

points to the consequentialist ethical reasoning used by both Raphael Lemkin

and the drafters’to justify the inclusion of the FTC in the UNGC.

Hence, in

his autobiography Lemkin refers to the devastating impact of the Ottoman dev-

shirme system on Greece: “Greece …a nation of seven million, would have

a population of sixteen million if not for the Greek children who were taken

away for four hundred years.”

The FTC is commensurable with psychological and other social science

research and various instruments of international and municipal law, all of which

established children’s right not to be separated from their families and kin.

International law protecting children mirrors the recognition that a child

belongs with his/her family, both during an armed conﬂict and in peacetime.

Effectively, children are already recognized as a special protected group in vari-

ous international law instruments, such as the Geneva Conventions and proto-

cols, the United Nations Convention on the Rights of the Child (UNCRC), the

United Nations Declaration on the Rights of the Child, and the League of

Nations Declaration on the Rights of the Child, to name but a few.

13 The United Nations Secretariat, “E/447 Draft Convention for the Prevention and Punish-

ment of Genocide, dated June 26, 1947”in Hirad Abtahi and Philippa Webb (eds), The

Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff 2008) 214 (E/447 Draft

Convention); The United Nations General Assembly Sixth Committee, “UN DOC A/C.6/

SR.81, Eighty-First Meeting dated October 22, 1948”in Abtahi and Webb (eds), The Geno-

cide Convention: The Travaux Préparatoires 1473; The United Nations General Assembly

Sixth Committee, “UN DOC A/C.6/SR.82, Eighty-Second Meeting dated October 23,

1948”in Abtahi and Webb, The Genocide Convention 1487.

14 International Military Tribunal, Trials of War Criminals Before the Nüernberg Military Tribu-

nals Under Control Council Law No. 10; Nüernberg,October 1946–April 1949 (United States

Government Printing Ofﬁce 1949), 674; Sixth Committee “UN DOC A/C.6/SR.82”(n 9)

1487–89.

15 Raphael Lemkin, Totally Unofﬁcial: The Autobiography of Raphael Lemkin (Donna-Lee

Frieze ed, Yale University Press 2013) 168.

16 John Bowlby, Attachment and Loss (Basic 1969); Tara Zahra, The Lost Children: Reconstruct-

ing Europe’s Families after World War II (Harvard University Press 2011) Raphael Lemkin,

“Orphans of Living Parents: A Comparative Legal and Sociological View”(1944) 10 Law

and Contemporary Problems 834.

17 Sonja C. Grover, Humanity’s Children: ICC Jurisprudence and the Failure to Address

the Genocidal Forcible Transfer of Children (Springer 2012) 17, 171; among the inter-

national legal instruments protecting children, such as the League of Nations, Geneva

Declaration on the Rights of the Child (adopted 26 September 1924) cl Special Supple-

ment 2143; Declaration on the Rights of the Child (adopted 20 November 1959) G.A.

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The Akayesu Chamber furthered our understanding of the elements of the

crime of genocide, including those of forcible child transfer.

The ICTR

Akayesu Chamber was of the opinion that

as in the case of measures intended to prevent births, the objective is not

only to sanction a direct act of forcible physical transfer, but also to sanction

acts of threats or trauma which would lead to the forcible transfer of children

from one group to another.

The Chamber upheld Lemkin and the UNGC drafters’position that forcible

child transfer is in essence biological genocide: “there was little difference

between the prevention of a birth by abortion and the forcible abduction of

a child shortly after its birth.”

The concise language of the FTC shuns the temporal dimension of forcible

child transfer, which is critical for the protection of children and children’s

rights. Two interrelated issues arise with respect to the temporal aspects of for-

cible child transfers. First, the UNGC text does not deﬁne until what age

a person is considered a child, and second, there is no minimum duration

requirement for the transfer to fall within the bounds of the FTC. The former

issue is resolved in the Rome Statute with respect to forcible child transfer –but

not in the prohibition of conscription and enlistment of child soldiers –which

sets the threshold at 15 years. The latter issue –the duration of the transfer and

whether to qualify it as genocide; e.g. as indeﬁnite, temporary, or only for the

duration of childhood (18 years of age) –has remained open.

Initially, neither the UNGC nor the statutes of various ad hoc tribunals

deﬁned until what age a person is considered a child in relation to the FTC.

However, these tribunals abided by the UNCRC, which deﬁnes a child as

“every human being below the age of 18 years unless under the law applicable

to the child majority is attained earlier.”

Both the UNGC text and the supplementary interpretive materials contain no

explicit or implicit minimum duration requirement. In the absence of these,

principles of statutory interpretation do not permit us to read into the clause

a restrictive term.

Legal scholar Gerhard Werle has thus argued that the FTC

Res. 1386 (XIV), 14 U.N. GAOR Supp. (No. 16) 19, U.N. Doc. A/4354; Convention

on the Rights of the Child (adopted 20 November 1989, entered into force 2 Septem-

ber 1990) 1577 UNTS 3 (UNCRC); The International Commission of the Red Cross,

“The Geneva Conventions of 12 August 1949.”www.icrc.org/en/doc/assets/ﬁles/pub

lications/icrc-002-0173.pdf [accessed 20 January 2019].

18 Akayesu (n 8) 5.

19 Akayesu (n 8) ⁋509 [emphasis added].

20 “UN DOC A/C.6/SR.82”(n 13) 1496.

21 UNCRC (n 17) 1.

22 Kurt Mundorff. “Other Peoples’Children: A Textual and Contextual Interpretation of the Geno-

cide Convention, Article 2(e)”(2009) 50(1) Harvard International Law Journal 61, 90–91.

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“encompasses a permanent transfer with the speciﬁc intent of destroying the

group’s existence.”

He further noted that a duration requirement concurs

with the FTC objective to protect the group’s biological continuity. Thus,

implicit in Werle’s interpretation is the proviso that forcible child transfer under

the UNGC is dependent on whether or not the (former) child returned and

bore children to the group. This proviso suggests that of the ﬁve acts enumer-

ated in the UNGC, the FTC is independent of the perpetrators’speciﬁc intent

(dolus specialis). In this, Werle opts for a consequentialist ethic –one that judges

the morality of an act by its consequences –rather than the deontological ethic

of the UNGC which determines it based on the actor’s speciﬁc intent. This

author argues that considering the malleability and dependency of children as

such, a minimum required duration cannot be justiﬁed. Furthermore, a duration

requirement is highly impractical since determining whether the abducted chil-

dren returned and bore children to the group involves considerable latency.

The UNGC has two objectives, namely the prevention of and punishment of

genocide. The removal of children from a group during their formative years,

even if only for the duration of their childhood, might irrevocably change the

child’s identity. It might take years to determine whether the forcibly removed

child eventually returned to the group and procreated. This not only entails

considerable latency in punishment and thwarts prevention, but it is also incon-

sistent with the UNGC deontological ethical reasoning. Whereas a minimum

duration requirement addresses only one tangible aspect of the group’s exist-

ence –return to the group –it does not address the loss of group identity as

a result of the forcible transfer. On these grounds a duration proviso seems

unreasonable and is likely to yield absurd consequences.

Two other application-oriented difﬁculties arise with respect to the FTC.

First, the speciﬁc intent to destroy the group by forcibly transferring its young

was often camouﬂaged and attempts were made to legitimize the intent by

alluding to the perpetrators’benevolent motives. At the Nüremberg Inter-

national Military Tribunal, Prosecutor Harold Neely argued: “it is no defense

for a kidnapper to say he treated his victim well …This serves to aggravate, not

mitigate, the crime.”

Second, the Akayesu Chamber decided intent can be

inferred “either from words or deeds and may be demonstrated by a pattern of

purposeful action.”

This decision was upheld in subsequent case law.

Inter-

preting the FTC, the Akayesu Chamber noted: “[T]he objective is not only to

sanction a direct act of forcible physical transfer, but also to sanction acts of

23 Gerhard Werle and Florian Jessberger, Principles of International Criminal Law (Third edn,

Oxford University Press 2014) 307.

24 International Military Tribunal (n 14) 674.

25 Akayesu (n 8) 313.

26 ICTR, The Prosecutor v. Clément Kayishema and Obed Ruzinanda, ICTR-95-I-T Ch II,

(21 May 1999), 91 (Kayishema and Ruzinanda); ICTR, The Prosecutor v. Laurent Semanza,

ICTR–97–20–T Ch I, (15 May 2003), ⁋313 (Semanza).

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threats or trauma which would lead to the forcible transfer of children from one

group to another.”

In outlining the elements of genocide by forcible child transfer and applying

the age criterion to determine who is a child, the Preparatory Commission for

the ICC charted the elements of genocide via forcible transfers of children:

1. The perpetrator forcibly transferred one or more persons.

2. Such person or persons belonged to a particular national, ethnical, racial

or religious group.

3. The perpetrator intended to destroy, in whole or in part, that national,

ethnical, racial or religious group, as such.

4. The transfer was from that group to another group.

5. The person or persons were under the age of 18 years.

6. The perpetrator knew, or should have known, that the person or per-

sons were under the age of 18 years.

7. The conduct took place in the context of a manifest pattern of similar

conduct directed against that group or was conduct that could itself

effect such destruction.

The Preparatory Commission upheld the Akayesu Chamber’s position that

[t]he term ‘forcibly’is not restricted to physical force, but may include

threat of force or coercion, such as that caused by fear of violence, duress,

detention, psychological oppression or abuse of power, against such person

or persons or another person, or by taking advantage of a coercive

environment.

Children as a protected group

The type of protected groups has been one of the contentious issues surround-

ing the UNGC. ICTR and ICTY (International Criminal Tribunal for the

Former Yugoslavia) case law and is highly instructive regarding our understand-

ing of how to apply the UNGC. The Akayesu Chamber probed whether the list

of protected groups is exhaustive, and decided that the groups protected should

not be limited to the four enumerated groups. The Chamber held that “it is

particularly important to respect the intention of the drafters of the Genocide Con-

vention, which according to its travaux préparatoires, was patently to ensure the

27 Akayesu (n 8) 509.

28 “Report of the Preparatory Commission for the International Criminal Court Addendum

Part II”Finalized draft text of the Elements of Crimes’PCNICC/2000/1/Add.2,

(2 November 2000), 7–8 (ICC Preparatory Commission).

29 ICC Preparatory Commission (n 28) 7 fn 5.

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protection of any stable and permanent group.”

This decision was heavily criti-

cized on the grounds that the list was indeed exhaustive and that out of the

four groups, three (national, ethnic, and religious) are neither stable nor

permanent.

Due to the difﬁculty of ﬁtting diverse victim groups into the types

of groups protected by the UNGC, the ICTR in Semanza held that

the determination of whether a group comes within the sphere of protec-

tion …ought to be assessed on a case-by-case basis by reference to the objective

particulars of a given social or historical context, and by the subjective percep-

tions of the perpetrators.

While indeed the question of which groups are protected remains unresolved,

children as such constitute a clear-cut group. Forcible child transfers target chil-

dren speciﬁcally because of their age-related qualities, such as dependence on

adults and malleability, which make them particularly vulnerable to identity

destruction. The UN Secretariat Draft Convention acknowledged the key role

of children in their group’s biological continuity:

The separation of children from their parents results in forcing upon the

former, at an impressionable and receptive age, a culture and mentality dif-

ferent from their parents’.This process tends to bring about the destruction of

the group as a cultural unit in a relatively short time.

The experts [Henri Donnedieu de Vabres, Vespasian Pella, and Raphael

Lemkin] were agreed that this point should be covered by the Convention on

genocide, but their agreement did not go further than that.

This consensus by the three international and criminal law experts on the effect

of a forcible transfer on children, and its impact on the group’s continuity,

seems to justify the irregularity of protecting only a sub-group of a protected

group. Thus, forcible child transfer was not considered an aggravated circum-

stance of forcible population transfer, but rather an act of genocide when it is

committed with the intent to destroy the group as such.

30 Akayesu (n 8) 516 [emphasis added].

31 William A. Schabas, “Groups Protected by the Genocide Convention: Conﬂicting Interpret-

ations from the International Criminal Tribunal for Rwanda”(2000) 6 ILSA Journal of Inter-

national Comparative Law 382.

32 Semanza (n 26) 317 [emphasis added]; ICTR, The Prosecutor v. Alfred Musema,

ICTR–96–13–A (27 January 2000) 160–63.

33 E/447 Draft Convention (n 13) 235. This Draft Convention, which is known as the “Secre-

tariat Draft,”was prepared upon the instructions of the Economic and Social Council, the

Secretary-General, with the assistance of the Division of Human Rights and a group of three

experts (Henri Donnedieu de Vabres, Raphael Lemkin, and Vespasian Pella). The experts pre-

pared a Draft Convention that included commentary by the General Secretary and the

experts.

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The biological impact of forcible child transfers was later emphasized by the

US delegate John Maktos, who proposed to include the FTC in the UNGC

although it was included in the Secretariat Draft as one of the clauses of cultural

genocide. Maktos explained:

There could be no doubt that a forced transfer of children, committed with

the intention of destroying a human group in whole, or at least in part,

constituted genocide. The forced transfer of children could be as effective

a means of destroying a human group as that of imposing measures

intended to prevent births, or inﬂicting conditions of life likely to cause

death.

The US ofﬁcial position as presented by Maktos echoes Lemkin’s view that

measures to prevent births, forced abortion, forced impregnation, the banning

of interracial marriages, and forcible child transfer constitute genocide and fall

within Lemkin’sdeﬁnition of genocide. In this deﬁnition, genocide is “a coord-

inated plan of different actions aiming at the destruction of essential foundations

of the life of national groups with the aim of annihilating the groups

themselves.”

These practices of biological genocide are aimed at the destruc-

tion of the target group’s essential foundations and their replacement by those

of the perpetrators.

The distinctive qualities of children make them particularly vulnerable to

appropriation and their rendering into members of another group. Children

conform to the criteria stipulated in Akayesu for identifying a group.

These

are: group membership is not readily challengeable by the members –children

cannot deny or renounce their membership; they belong to the group involun-

tarily, by birth; in a continuous, and often irremediable manner, for as long as

they are under 18 years of age. Moreover, the identiﬁcation of children as group

members is determined subjectively by the perpetrators based on the assumption

that they inherit their parents’identity and carry it to the future.

The major justiﬁcation for considering children as such an exclusive protected

group is that the protection of children has by now become a peremptory norm

of international law, as deﬁned in Article 53 of the Vienna Convention on the

34 United Nations, Economic and Social Council, “UN Doc E/621 Prevention and Punish-

ment of Genocide, Historical Summary, Dated 2 November 1946–20 January 1948,”in

Abtahi and Webb, The Genocide Convention (Vol. 1) (n 13) 1493.

35 Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government,

Proposals for Redress (2nd edn, Lawbook Exchange 2008) 79. For more on Lemkin’s notion

of genocide, see Amir 2 (n 12) 3‒34.

36 Douglas Irvin-Ericson, “Sixty Years of Failing to Prosecute Sexual Crimes: From Raphaël

Lemkin at Nuremberg to Lubanga at the International Criminal Court,”in Mary Michele

Connellan and Christiane Fröhlich (eds), A Gendered Lens for Genocide Prevention (Routle-

dge 2018) 89.

37 Akayesu (n 8) 516.

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Law of Treaties.

This norm is both expressed and implied in various inter-

national law instruments. Special provisions for the protection of children were

created by the League of Nations. These reverberated and complemented the

social policies and municipal legislation since the late nineteenth century. The

special protected status awarded to children is a part of an individual-based

rights approach, awarded irrespective of other identities or group membership

of the children.

The FTC and the proposed protocol introduced in this chap-

ter provide children with a collective-based right, in order to complement and

positively enhance their rights as child members of a group.

The recognition of children as such as a ﬁfth protected group under the

UNGC would be commensurable with the special protected status awarded to

children. It is needed because historically children of various groups were for-

cibly transferred to another group with the intent to destroy the group as such.

The UNGC grants protection to child members of four groups only, excluding

other groups (for example, political, social, socio-economic, gendered). This

exclusion leads to consequences which are manifestly absurd, as some transfers

are recognized as genocide and others are not, and the type of group and

whether or not it constitutes one of the protected groups may be the only sig-

niﬁcant difference between the cases. The following section applies the physical

elements of the crime of genocidal forcible transfers hypothetically to historical

cases.

Hypothetical applications of the FTC to historical cases

Hypothetical application of the physical elements of the FTC to the child

removal programs of various groups reveals striking similarities across cases and

group types, irrespective of the local context and type of group. Forcible child

transfers begin with “othering.”A group is constructed and problematized,

using cultural, biological, ethnic, racial, national, economic, and moral justiﬁca-

tions. Quite often, the construction and problematization of a particular group

are supported by pseudo-scientiﬁc theories. Historically, most forcible child

transfers were part of social policies in many states and regulated by special laws.

Child removal policies were undertaken with the proclaimed intent to protect

children of particular groups due to some alleged benign or malign impediment

of the group. Children became targets of corrective interventions intended to

remove them from the purported sources of the problem, mainly their families

and groups. Such interventions consisted of destroying the children’s particular-

38 United Nations, Vienna Convention on the Law of Treaties (with annex). Concluded at

Vienna on 23 May 1969 cl 18,232, 53.

39 See, for example, Protocols I and II Additional to the Geneva Convention, the UNGC,

UNCRC, and its optional protocol I on child soldiers and the United Nations Convention

on the Rights of Children (OPAC 2000), and Optional Protocol II, on the Sale of Children,

Child Prostitution, and Child Pornography.

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collective identity and inculcating them with the perpetrators’ideology. Indi-

genous people in North America and Australia were categorized and problem-

atized as savages and members of an inferior culture doomed to extinction.

Their children’s removal was allegedly to save them from the qualities associated

with their groups. The removal was authorized by various laws and social pol-

icies governing Indigenous people. Children were taken away by force from

their families at the age of six years and placed in residential/boarding schools.

The children were forbidden to speak their languages or practice their customs

or ceremonies, and their circles of kinship were broken.

In Franco’s Spain, children of Republicans and other political opposition

groups were often arrested together with their mothers, or born in prison,

sometimes as a result of rape. The children were taken care of by nuns according

to the principles of the FE de las JONS Movement.

Francoists believed that

the Republicans and all others who opposed the military coup belonged to an

inferior race. Psychiatrist Antonio Vallejo Nágera, the director of the Military

Psychiatric Services and one of Franco’s ideologues, attributed this political dif-

ference to an alleged “red”gene responsible for mental pathologies.

The

removal of the children was to override the effects of this gene. Some children

were brought up in orphanages and some were adopted by Franco’s supporters –

their birth certiﬁcates were destroyed and they were given new identities.

In Israel, between 1948 and 1954 children of Yemeni immigrants were separated

from their families, sometimes at birth, and taken to childcare institutions and

40 Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the

Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada

(TRC Canada 2015); Jeff Benvenuto, Andrew Woolford, and Alexander Hinton Laban,

“Introduction”in Jeff Benvenuto, Andrew Woolford, and Alexander Hinton Laban (eds),

Colonial Genocide in Indigenous North America (Duke University Press 2014) 1; Margaret

D. Jacobs, “The Habit of Elimination: Indigenous Child Removal in Settler Colonial Nations

in the Twentieth Century”in Woolford, Benvenuto, and Laban Hinton, Colonial Genocide

189; Andrew John Woolford, This Benevolent Experiment: Indigenous Boarding Schools, Geno-

cide, and Redress in Canada and the United States (University of Nebraska Press 2015); Amir

1. (n 12) 41.

41 Ricard Vinyes, “Los Desapariciones Infantiles Durante el Franquismo y sus Consecuencias

[The Desparate: Childhood during Francoism and its Consequences]”(2006) 19 Inter-

national Journal of Iberian Studies 53 (Vinyes 1); José Antonio Primo, de Rivera, “Twenty-

Six Points Manifesto, November 1934”in (tr), de Rivera, José Antonio Primo (ed), Selected

Writings (CreateSpace 1934) 132.

42 Antonio Vallejo Nágera, Eugenesia de la Hispanidad y Regeneración de la Raza (Editorial

española, Burgos 1937) 142 (Vallejo Nágera 1); Antonio Vallejo Nágera, “Psiquismo del

Fanatismo Marxista”(1938) 6(1) Semana Médica Española 172; Antonio Vallejo Nágera,

Niños y Jóvenes Anormales (Sociedad de la Educación Atenas, Madrid 1941) (Vallejo

Nágera 2); Ricard Vinyes Ribas, “Construyendo a Caín: Diagnosis y Terapia del Disidente:

Las Investigaciones Psiquiátricas Militares de Antonio Vallejo Nágera con Presas y Presos Pol-

íticos”(2001) 44 Ayer 227.

43 Vinyes 1 (n 41).

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hospitals due to alleged poor parental practices.

Many children who were dis-

pensed to these facilities disappeared. According to state ofﬁcials most of the chil-

dren died, although many parents were not notiﬁed. Three commissions of inquiry

established over the years conceded that there were cases of adoptions without the

parents’knowledge or consent. Some of these cases involved identity changes.

Following the Cuban revolution, between December 1960 and October 1962

the United States established Operation Peter Pan in Cuba, which consisted of

encouraging the migration of unaccompanied Cuban children to Miami and led

to the airlifting of 14,048 children.

This child removal program was one of

the policies designed to undermine the Cubans’support of Castro and reinstate

a regime favourable to the United States’interests. The United States provided

visa waivers and provided for the children’s stay in institutions and foster care.

The propaganda section of the CIA at Quarters Eye disseminated false and

vicious rumours about Castro’s intention to nationalize Cuban children and

denounce parental rights. Yet, it did not intend to destroy the Cuban people.

In these and other cases states used the law and various enforcement organs

to discipline the targeted groups.

It white-washed this devastating practice

under a rhetoric of benevolent motives and the need to correct and redeem chil-

dren from the destructive inﬂuence of their families and groups. In all these

cases the transfers resulted in the parents’explicit or implicit loss of custody

over the child, and the destruction of the child’s identity, and ended effective

afﬁliation with the group from which it was taken.

Table 7.1 presents the cases in terms of time, the victims, and grounds for the

transfer. Table 7.2 applies the criteria set by the Preparatory Commission with

respect to the elements of the crime. Table 7.3 presents the amenability of the

cases to the deﬁnition of protected groups.

To recap, most historical forcible child transfers were part of population-

engineering policies of states, designed with the objective of, inter alia, dealing with

problematized groups. These interventions were presented in progressive terms,

mainly to provide these children with “proper”education and values. While these

44 “Report: State Commission of Inquiry in the Matter of the Disappearance of Children of

Yemeni Immigrants between 1948–1954; Commission Chairs: Yehuda Cohen; Yaakov

Kedmi”Government Printer (Jerusalem, 2001); Boaz Sangero, “Where There Is No Suspi-

cion There Is No Real Investigation: The Report of the Committee of Inquiry into the Dis-

appearance of the Children of Jewish Yemenite Immigrants to Israel in 1948–1954”(2002)

21 Theory and Criticism 47; Ruth Amir, Who Is Afraid of Historical Redress? The Israeli

Victim-Perpetrator Dichotomy (Academic Studies Press 2012).

45 “Report: State Commission of Inquiry”(n 44).

46 Enrique Flores-Galbis, 90 Miles to Havana (1st edn Roaring Brook Press 2010) 292; Kathlyn

Gay, Leaving Cuba: from Operation Pedro Pan to Elian (Twenty-First Century Books 2000)

144; Jose G. Perez, “How Washington Uses Emigration as a Weapon against Cuba”in Nev-

ille Spencer (ed), Cuba as Alternative: An Introduction to Cuba’s Socialist Revolution (Resist-

ance Books 2000) 87.

47 For a detailed analysis of the use of law for forcible child transfers in these cases, see Amir 2

(n 12).

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Table 7.1 Examples of forcible child transfer cases

Case Victim

group

Subjective

type

Dominant political

doctrine –group’s

problematization

Solution to the “prob-

lem”–oppressive state

apparatuses

Australia

1869–1970 Aboriginal

people and

Torres Strait

Islanders

Ethnic/

racial Uncivilized, savages,

Indigenous cultures

are inferior and due

to be extinct

Civilization, destruc-

tion of Indigenous

people by breeding

out, destruction of

Indigenous people’s

ways of life, commu-

nities, and kinship

through legislation

Canada

1867–1996 Aboriginal

people Ethnic/

racial Uncivilized, savages,

Indigenous cultures

are inferior and due

to be extinct

Civilization, destruc-

tion of Indigenous

people by breeding

out, destruction of

Indigenous people’s

ways of life, commu-

nities, and kinship

through legislation

United States

1860–1978 Indigenous

people Ethnic/

racial Uncivilized, savages,

Indigenous cultures

are inferior and due

to be extinct

Civilization, destruc-

tion of Indigenous

people by breeding

out, destruction of

Indigenous people’s

ways of life, commu-

nities, and kinship

through legislation

Spain under

Franco

1936–1960

Supporters

of the

Republic

Racial

group,

carriers of

the “red”

gene

Republicans carry the

“red”gene, which

causes mental path-

ology. Crooked

elements threaten

Spain’s linearity

Non-judicial killing,

imprisonment,

legislation

Cuba

1960–1962 National/

political National/

political Problematization of

Fidel Castro’s“com-

munist”regime near

US territory. The

breaking up of fam-

ilies in order to

undermine the

Cubans’support of

Castro

Use of propaganda

and embargo,

intended to bring

Cubans to near-

starvation. Publica-

tion of a fake pro-

posed Cuban bill for

the nationalization

of children. Intended

to break up families

and social fabric and

undermine the

Cubans’support of

Castro

(Continued )

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interventions carried with them the promise for a better future, in practice they pre-

pared the children for a life of servitude, physical and sometimes sexual abuse, and

very basic literacy.

Child soldiers

As previously noted, the recruitment and use of children during armed conﬂict is one

of six grave violations against children identiﬁed and condemned by the UN Security

Table 7.1 (Cont.)

Case Victim

group

Subjective

type

Dominant political

doctrine –group’s

problematization

Solution to the “prob-

lem”–oppressive state

apparatuses

Israel

1948–1954 Yemeni

immigrants,

ethnic

Ethnic/

biological Problematization of

the Yemenis’“primi-

tive practices,”Arab

blood, in need of civ-

ilization and assimila-

tion in the Israeli

melting pot

Aggressive assimila-

tion, child removal

Democratic

Republic of

the Congo

(DRC)

2002–2003

Ethnic Ethnic Deﬁance of the colo-

nially-constructed

ethnic divides

Undermine the

national allegiance of

the Hema from the

DRC to the UPC/

FPLC (Union of

Congolese Patriots/

Patriotic Forces for

the Liberation of

Congo), appropri-

ation of children as

sex slaves and child

soldiers

Nigeria,

Boko Haram

2014–2017

Religious/

ethnic Religious/

ethnic Insurgence, estab-

lishment of Sharia

law, problematiza-

tion of “inﬁdels”

Appropriating chil-

dren as soldiers and

suicide bombers,

enforcing Sharia

48 Jean Barman, Yvonne Hebert, and Don McCaskill (eds), Indian Education in Canada (UBC

Press 1986); Amparo Gomez and Antonio Fco Canales, “Children’s Education and Mental

Health in Spain during and after the Civil War: Psychiatry, Psychology and ‘Biological Peda-

gogy’at the Service of Franco’s Regime”(2016) 52(1–2) Paedagogica Historica 154; Alice

C. Fletcher and United States Ofﬁce of Education, Special Report, 1888:Indian Education

and Civilization (Govt. print. off. 1888); Woolford, This Benevolent Experiment n 40.

154 Ruth Amir

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Table 7.2 The physical and mental elements of the crime (Art. 6(e), the Rome Statute)

Australia Canada United

States

Francoist

Spain

Cuba Israel DRC Nigeria, Boko

Haram

Number of children ~50,000 ~150,000 Over

100,000 ~300,000 ~10,000 ~2,500 ~30,000 (in

2003) ~1,500

Forcible transfer?

(Physical force, threat, trauma) +++++++ +

Does the child belong to a group

protected under the UNGC? +++–++–+

Was there a speciﬁc intent to

destroy? ++++––– +

Were the children removed from

one group to another? +++++++ +

Persons transferred are under 18

years of age +++++++ +

The perpetrators knew these per-

sons were under 18 years of age +++++++ +

Part of a manifest campaign

against the group? +++++–/+ + +

Duration of transfer?* Childhood Childhood Childhood Indeﬁnite Indeﬁnite Most

indeﬁnite Until the end

of civil war Until release by

the Nigerian Army

*The UNGC, Rome Statute, and case law left open the issue of the duration of the transfer.

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Council.

It is also one of the current forms of forcible child transfer, which might

also fall within the boundary of genocide. The UN Secretary-General’s 2018 list of

shame for the recruitment and use of children includes the armed forces of seven

countries (Afghanistan, Myanmar, Somalia, South Sudan, Sudan, Syria, and

Yemen).

Furthermore, 56 non-state armed groups appear on the 2018 list for the

recruitment and use of children (including, among others, the Mai-Mai Nyatura in

the DRC, ISIS, Somalia’s Al-Shabaab, and the Kachin Independence Army in Myan-

mar). According to the report, warring parties in 14 countries are guilty of recruiting

andusingchildreninconﬂicts.

Children are conscripted and enlisted in military organizations due to their

poor risk assessment and lack of forethought.

They are less costly to the

organizations than adult recruits and perform various support roles for free.

Whereas some children are abducted or forced to join armed groups, becoming

a child soldier may seem to some children to be an opportunity to evade a life

of poverty and/or ethnic or political persecution.

Ample evidence within clinical and social psychology, as well as public health

research, reveals the harms affecting children in war in general and child soldiers

Table 7.3 Criteria for protected groups (ICTR–96–4–TThe Prosecutor v Akayesu

§511)

Australia Canada United

States

Francoist

Spain

Cuba Israel DRC Nigeria,

Boko

Haram

Stable group? + + + + + + + +

Group membership

unchallengeable by

victim?

+ + + + ++++

Belonging to the

group automatically?

+ + + + ++++

Group membership

determined by birth?

+ + + + ++++

Group membership

continuous?

+ + + + ++++

49 Children and armed conﬂict (n 10).

50 Children and Armed Conﬂict (n 10).

51 Children and Armed Conﬂict (n 10) 2.

52 Elisabeth Schauer and Thomas Elbert, “The Psychological Impact of Child Soldiering”in

E. Martz (ed.), Trauma Rehabilitation After War and Conﬂict (Springer 2010) 311; Chris-

topher Blattman and Jeannie Annan, “The Consequences of Child Soldiering”(2010) 92 (4)

The Review of Economics and Statistics 882.

53 Blattman and Annan (n 52).

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in particular. Like survivors of forcible child transfers, former child soldiers

suffer from post-traumatic stress disorder and other mental harms which tend to

be transmitted intergenerationally, such as the severe psychological effects of

witnessing or taking part in killing, and the susceptibility to sexual violence and

slavery.

Whereas the Rome Statute enumerates conscription and enlistment of

child soldiers under the age of 15 as a war crime perpetrated by individuals

against individuals, it has been argued that under some conditions conscription

and enlistment can be considered as genocide.

Accordingly, most of the

recent literature on child soldiers engages with the harms suffered by children as

individuals rather than on the implications on the child’s group and society. It is

therefore possible, based on the widely researched historical cases, to infer many

of the long-term implications on the family, group, and society. Given the inci-

dence of conscription and enlistment in the global south, this impact can be

even stronger.

The ICC was criticized for failing to apply the FTC in cases involving the

enlistment and conscription of child soldiers, even though they were treated

with equal gravity as war crimes. As the United Nations Security Council

maintained,

Preventing violations against children affected by conﬂict should be

a primary concern of the international community. …And yet, as illustrated

in the present report, time and again, armed conﬂict strips away layers of

protection afforded by families, society and law and children are victimized

as both the targets and the perpetrators of violence.

Hence, the Report acknowledges that children are targeted because of their par-

ticular qualities, and alleges that the kidnapping of children by non-state armed

organizations “points to a sustained reliance on children for combat and support

duties.”

The Report further acknowledges the targeting of children as members of

a group. For example, it was found that ISIS abducted children and that “(t)he

alleged afﬁliation of relatives with opposing armed forces or groups was the

54 Cecilia Wainryb, “‘And So They Ordered Me to Kill a Person’: Conceptualizing the Impacts

of Child Soldiering on the Development of Moral Agency”(2011) 54 Human Development

273; Child Soldiers International, “How Is Recruiting Children Harmful?”www.child-sol

diers.org/how-is-recruiting-children-harmful [accessed 20 January 2019]; Cecilia Wainryb

and Patricia K. Kerig, “The Person and the Social Context: Future Directions for Research on

the Traumatic Effects of Child Soldiering Around the World”(2013) 22 (8) Journal of

Aggression, Maltreatment & Trauma 887; Blattman and Annan (n 52); Yael Danieli, Inter-

national Handbook of Multigenerational Legacies of Trauma (Plenum 1998).

55 Sonja Grover, “Child Soldiers as Victims of ‘Genocidal Forcible Transfer’: Darfur and Syria as

Case Examples”(2012) 17 (3) International Journal of Human Rights 411; Amir 2 (n 12);

Irvin-Ericson, “Sixty Years”(n 36) 83.

56 Children and Armed Conﬂict (n 10) 3.

57 Children and Armed Conﬂict (n 10) 2 [emphasis added].

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primary reason for abduction.”

Sonja Grover has criticized the ICC for its fail-

ure to address the enlistment and conscription of child soldiers as genocidal for-

cible child transfers. She has argued that the transfer appropriates children and

destroys –often by violence –their loyalties and afﬁliations and replaces them

with allegiance to the perpetrator.

Indeed, the elements of the war crime of enlistment or conscription of child sol-

diers outlined in Article 8(2)(e)(vii) of the Report of the Preparatory Commission

for the ICC share most of the elements of the FTC. The two exceptions are the

child’s membership in a protected group, and the perpetrator’s speciﬁc intent to

destroy the group in whole or in part. Both crimes are especially designed to target

children as such and they are transferred from one group to another.

The targeting of children as such is clearly evident in the theoretical and

empirical realms and is consistent with as well as in the Special Court for

Sierra Leone (SCSL) and ICC jurisprudence.

Hence, in an amicus curiae

brief submitted to the Appeals Chamber in the Sam Hinga Norman case in

response to the fourth “Defence Preliminary Motion Based on the Lack of

Jurisdiction”(Child Recruitment),

the brief’s Statement of Facts maintains

that “Children were speciﬁcally recruited because rebel and government com-

manders considered them to be compliant and believed them to be aggressive

ﬁghters.”

The conscription and enlistment of child soldiers is prohibited and enumerated

in the Rome Statute as a war crime. Nonetheless, this prohibition is plagued by the

“three-year gap”with respect to the age below which conscription and enlistment

are prohibited. Rome Statute Articles 8(b)(xxvi) and 8(e)(vii) pertain respectively

to international and non-international armed conﬂicts and prohibit the conscription

and enlistment of children below the age of 15.

Article 22(2) of the 1990 African

Charter on the Rights and Welfare of the Child provides that “States Parties to

the present Charter shall …refrain, in particular, from recruiting any child.”

Similarly, Article 3(a) of the International Labour Organization Convention Con-

cerning the Prohibition and Immediate Action for the Elimination of the Worst

Forms of Child Labour lists “forced or compulsory recruitment of children for use

58 Children and Armed Conﬂict (n 10) 27.

59 Grover, Humanity’s Children (n 17).

60 Bernd Beber and Chris Blattman, “The Logic of Child Soldiering,”https://chrisblattman.

com/documents/research/2011.LogicOfChildSoldiering.pdf [accessed 20 January 2019].

61 Prosecutor v Sam Hinga Norman SCSL–2003–08–PT, Amicus Curiae Brief of University of

Toronto International Human Rights Clinic and Interested International Human Rights

Organizations (31 October 2003) (Amicus Curiae Brief). Sam Hinga Norman died while in

custody on 22 February 2007 after the closing arguments and before the verdict.

62 Amicus Curiae Brief (n 61) 5.

63 “Rome Statute of the International Criminal Court”(adopted 17 July 1998, entered into

force 1 July 2002) 2187 UNTS 3, Articles 8(b)(xxvi) and 8(e)(vii) (Rome Statute).

64 African Charter of the Rights and Welfare of the Child (adopted on 1 July 1990, entered into

force 29 November 1999), Article 22(2).

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in armed conﬂict”as one of the worst forms of child labour.

OPAC 2000

sets

the age threshold at 18, urges non-state actors to avoid recruiting or using children,

and requires state parties to take all feasible measures to criminalize such

practices.

Rome Statute Article 26 excludes the ICC jurisdiction over persons

under 18 at the time the alleged crime was committed.

Thus, the Rome Statute

created a three-year gap in which child soldiers between the ages of 15 and 18 are

neither criminally liable nor recognized as victims.

The SCSL was the ﬁrst international tribunal to try and convict persons for the

use of child soldiers (in the AFRC Trial).

While the SCSL Statute Article 4(c)

prohibits “Conscripting or enlisting children under the age of 15 years into armed

forces or groups or using them to participate actively in hostilities,”

it confers upon

the SCSL jurisdiction over people between the ages of 15 and 18. Thus Article 7

states: “The Special Court shall have no jurisdiction over any person who was

under the age of 15 at the time of the alleged commission of the crime.”

Should

such persons come before the Court, they “shall be treated with dignity and a sense

of worth, taking into account his or her young age and the desirability of promoting

his or her rehabilitation, reintegration into and assumption of a constructive role in

society, and in accordance with international human rights standards, in particular

the rights of the child.”

As in the SCSL, the child soldiers’convictions were appar-

ently examined by the ICC, and as observers within the ICC suggested at the time,

these convictions “will have a major impact on upcoming prosecutions at the Inter-

national Criminal Court.”

Apart from the three-year gap, the crime of conscription and enlistment of

child soldiers suffers from jurisprudential and evidentiary problems when con-

sidered as a war crime. These hurdles are evident in the ICC’sﬁrst verdict in the

matter of Thomas Lubanga Dyilo. On 14 March 2012 Lubanga, a national of the

65 Convention Concerning the Prohibition and Immediate Action for the Elimination of the

Worst Forms of Child Labour, (adopted on 17 June 1999, entered into force 19 Novem-

ber 2000), Article 3(A). The Convention may be denounced between 19 November 2020–19

November 2021.

66 The Optional Protocol on the Involvement of Children in Armed Conﬂict was adopted by

the General Assembly on 25 May 2000 and entered into force on 12 February 2002. This is

an optional protocol to the UNCRC.

67 As of 2018, 167 out of the 197 UN members have ratiﬁed OPAC 2000.

68 Rome Statute (n 56) Article 26.

69 Grover, Humanity’s Children (n 17).

70 “Agreement between the United Nations and the Government of Sierra Leone on the Estab-

lishment of a Special Court for Sierra Leone”(adopted on 16 January 2002); see “Statute of

the Special Court for Sierra Leone,”pursuant to Security Council resolution 1315 (2000)

(adopted on 14 August 2000) (SCSL Statute).

71 SCSL Statute (n 62), Article 4(c) [emphasis added].

72 SCSL Statute (n 62) Article 7 [emphasis added].

73 SCSL Statute (n 62) Article 7.

74 Lisa Clifford, “ICC Examines Child Soldier Convictions,”Institute for War and Peace

Reporting, 25 June 2007, 118 Africa, Sierra Leone ACR, https://iwpr.net/global-voices/

icc-examines-child-soldier-convictions [accessed 20 January 2019].

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DRC, was found guilty of conscripting and enlisting child soldiers. Although

Lubanga denied he was aware that some of the children conscripted and enlisted

to the UPC/FPLC were under 15, he conceded that these children were orphans

and argued that they needed protection.

The Chamber sided with the prosecu-

tion that “the accused agreed with others to gain power in Ituri through the

recruitment of ‘young persons’.”

The Ofﬁce of the Prosecutor (OTP) submit-

ted that “[t]he need for a more substantial army led to increased recruitment of

young people –irrespective of their age –by targeting schools and the general

public, and through coercive campaigns in the villages.”

The OTP further

alleged that the FPLC recruited children by abduction and exerted pressure on

the population during recruitment campaigns.

Evidence suggests that in many cases sexual abuse is intrinsic to the physical act of

forcible child transfer.

However, as Irvin-Ericson suggested, sexual crimes are often

considered as an aspect of organizational anarchy, and are thus cast as “incidental

occurrences,”which undermines the basis for establishing the defendant’smens rea

through intent and knowledge.

In Lubanga, the prosecution noted that the wit-

nesses “alleged they were beaten, whipped, imprisoned and inadequately fed, and

young girls were raped. They were encouraged to drink alcohol and to take drugs,

leading to frequent intoxication.”

The Chamber upheld the OTP argument that

“Lubanga either knew that children under 15 years of age were being conscripted or

enlisted, or he was at least aware that this was an inevitable consequence of what was

occurring.”

The Chamber in Lubanga held that the protection granted to children

includes not only protection from violence and fatal or non-fatal injuries during

ﬁghting, but also the potentially serious trauma that can accompany recruitment

(including separating children from their families, interrupting or disrupting their

schooling and exposing them to an environment of violence and fear).

75 The Prosecutor v. Thomas Lubanga Dyilo, ICC601/04601/06, Judgment Pursuant to Article

74 of the Statute (14 March 2012), www.icc-cpi.int/iccdocs/doc/doc1379838.pdf

[accessed 20 January 2019], ⁋1277.

76 Lubanga (n 74) 22; 38.

77 Lubanga (n 74) 26.

78 Lubanga (n 74) 30.

79 To name but a few, TRC Report (n 40); Australia Human Rights and Equal Opportunity

Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Abo-

riginal and Torres Strait Islander Children from Their Families (Human Rights and Equal

Opportunity Commission 1997). About sexual violence in Spain see Vinyes 1 (n 41); Ricard

Vinyes, Montse Armengou, and Ricard Belis, Los Niños Perdidos Del Franquismo [The For-

gotten Children of Francoism] (RBA 2005).

80 Irvin-Ericson (n 36) 95.

81 Lubanga (n 74) 32.

82 Lubanga (n 74) 33.

83 Lubanga (n 74) 605.

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The Chamber further acknowledged that girls who fell victim to sexual crimes

by their commanders or fellow soldiers were stigmatized and found it difﬁcult

to reintegrate into their families.

Regrettably, Lubanga’s indictment did not include gender-based crimes and

sexual violence against children. Thus, Chamber I noted that “many [victims]

also alleged they had suffered harm as a result of other crimes, such as sexual

violence and torture or other forms of ill treatment, which are not the subject of

charges against the accused.”

Whereas Chamber I engaged quite extensively

with this notion, it upheld the Pre-Trial Chamber, which held that “active”is

broader than “direct”and also includes “combat-related activities.”

Yet, the

majority of the Trial Chamber did not provide a comprehensive legal deﬁnition

on what is meant by the “conscripting and enlisting children under the age of

15 and using them to participate actively in hostilities,”and instead opted for

a case-by-case approach.

Accordingly, domestic housework performed by

many girl soldiers was not considered risky enough to fall within the scope of

“active use.”

In a dissenting judgement, Judge Odio Benito asserted that excluding sexual

violence against children, in the form of sexual slavery and forced marriages of

child soldiers,

would be contrary to the ‘object and purpose’of the Rome Statute, con-

trary to international recognised human rights and discriminatory under

Article 21(3), not to deﬁne the legal concepts of enlistment, conscription

and use to participate actively in the hostilities, independently of the evalu-

ation of the evidence tendered during trial or the scope of the charges

brought against the accused.

Because sexual violence was viewed as incidental rather than part of the physical

element of conscription and enlistment of child soldiers, or an aggravating

factor of Lubanga’s crimes, the Appeals Chamber did not ﬁnd Lubanga liable

for reparations in respect of the harm of sexual and gender-based violence.

The ICC Dominic Ongwen case highlights the need for prevention, broader

protection, and enforcement of the prohibition against the conscription and

enlistment of child soldiers. Dominic Ongwen, one of the ﬁve leaders of the

Lord’s Resistance Army (LRA) in Uganda, faces 70 charges, including abduc-

tions of children and their use as child soldiers, porters, and sex slaves.

18 September 2018, Defence Counsel Ayena Odongo noted in his opening

84 Lubanga (n 74) 891.

85 Lubanga (n 74) 19–20 16 (emphasis added).

86 Lubanga (n 74) 283 622.

87 Rome Statute (n 63) § 8(2)(e)(vii).

88 Lubanga (n 74) Separate and Dissenting Judgement of Judge Odio Benito 6‒8.

89 Irvin-Ericson (n 36) 95ff; Lubanga ICC-01/04-01/06-3129 (n 74) 77 198.

90 The Prosecutor v Dominic Ongwen, ICC-02/04-01/15 (Ongwen).

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statement that Ongwen “was just a child when he was abducted, brutalized and

made in the bush with no mind of his own.”Odongo noted

the impact on the accused, the spiritualism and mindless brutality on him,

the coercive environment bound in torture, [the] spy network woven

around him, extreme hunger, the treacherous weather he was made to

endure, and the constant reminder that he no longer had parents and

a home to return to.

Ongwen was allegedly brutalized and trained in the bush to kill, mutilate, loot,

and rape. The defence further argued that

Children abducted by LRA, the accused inclusive, and used in the war in

northern Uganda grew up in one of the most brutal environments, never

before known to humanity, with little room for moral development that

would enable them to later take independent decisions.

The ICC OTP framed the enlistment and conscription of child soldiers under

15 as war crimes. Indeed, the two distinctive issues of whether the children

belong to a protected group and whether the perpetrator acted with the speciﬁc

intent to destroy the group as such must be established on a case-by-case basis.

However, cases such as Lubanga and Ongwen bear some important implications

with respect to the protection of children from forcible transfer. Ongwen’s

experience as a former victim and current alleged perpetrator suggests that

timely interventions are critical for child victims and are conducive to breaking

the cycle of violence.

Comparing child soldiers’cases with historical forcible transfers (see Tables

7.1–7.3) points to the similarity of the elements of these crimes. Whereas the

proposed recognition of children as such as a protected group draws on hypo-

thetical approaches to historical instances of forcible child transfers, it is import-

ant to note the differences between historical and current forcible child

transfers. First, historical transfers were practiced by state actors, whereas in cur-

rent cases both state and non-state actors engage in conscripting and enlisting

child soldiers. Nevertheless, UN General Assembly Resolution 60/1 on the

Responsibility to Protect and the Optional Protocol to the UNCRC on the

involvement of children in armed conﬂict both establish the responsibility of

state parties.

91 Ongwen (n 85) Trial Hearing 18 September 2019, 4.

92 Ongwen (n 85) 6.

93 “Resolution A/RES/60/1”(Adopted by the UN General Assembly on 16 September 2005);

OPAC 2000 (n 39) Articles 4, 6, 7, 8.

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Genocidal mens rea –the speciﬁc intent to destroy the group as such –has

yet to be established on a case-by-case basis. Furthermore, it must be proven

that the forcible child transfer constitutes part of a wider, general plan to destroy

the group or can itself bring about the group’s destruction. This may not be the

case in Lubanga, but could possibly be established in other cases, such as the

Boko Haram kidnappings in Nigeria, the conscription of child soldiers in Sudan,

and the destruction of the Yezidis by ISIS.

Conclusions

The spectre of forcible child transfer has taken a malign turn in the form of con-

scripting and enlisting child soldiers by both state and non-state actors, using

the special characteristics of children as such. In view of the recurrent patterns

of genocidal forcible child transfers across time and space, the failure to properly

address these atrocities as genocide, given that the elements of the crime are

established, turns the FTC into a dead letter and undermines the gravity of the

crime.

Hypothetical applications of the FTC, as shown in the tables, lead to a result

which is manifestly absurd or unreasonable, namely that highly similar cases in

terms of the physical and mental elements of the crime have starkly different

outcomes, because the UNGC protects children of some groups but not of

others from forcible transfer. This makes it increasingly difﬁcult to justify the

adherence to the narrow scope of the UNGC with respect to the types of pro-

tected groups. This issue cannot be resolved by means of interpretation.

Although Article 9 of the Rome Statute allows the ICC some ﬂexibility with

respect to the elements of the crimes, this is counterbalanced by Article 22,

which explicitly states that “the deﬁnition of a crime shall be strictly construed

and shall not be extended by analogy.”

Fornearlytwocenturies,theprotectionofchildrenassuchhas

been a consensus issue in municipal and international law. Therefore, this

chapter argues for the need to add a protocol to the UNGC to recognize

children as such, of any identiﬁable group of persons, as a ﬁfth protected

group.

In addition to expanding the protection granted to children, provisions for

prompt action justify the establishment of a Communications Procedure similar

to that of the UNCRC Optional Protocol on a Communications Procedure –

which entered into force in 2014 –to enable complaints in various forms.

A Rapid Inquiry Procedure by an IIIM liaising with the Committee on the

Rights of the Child, the ICC OTP and the relevant government is more likely

to facilitate timely interventions and interim remedies, such as rehabilitation and

humanitarian aid for the victims, than the current procedure of referral to the

ICC. Establishing these mechanisms with respect to the conscription and

94 Rome Statute (n 63) Article 9.

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recruitment of child soldiers is likely to highlight the gravity of the crime of

conscription of child soldiers. However, whether a given case is in violation of

the FTC and hence is genocide, or a war crime, will be determined according to

the circumstances of each case. The proposed mechanism will hopefully contrib-

ute to prevention and early detection and can improve our capacity to deal with

violations and contribute to the alleviation of survivors’suffering in a more

timely fashion.

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8 Interaction between genocide and

superior responsibility

Conviction for a special-intent crime

without proving special intent?

Michala Chadimová

Introductionm

The treatment of special-intent crimes, such as genocide, is one of the most

controversial aspects of superior responsibility. Superior responsibility is often

based on omission –the failure to prevent or punish the crimes of

subordinates.

Thus, for a superior to be held liable under the superior responsi-

bility doctrine, no active conduct on the part of the superior is required.

Depending on the circumstances, an omission by a superior in the form of fail-

ure to prevent or punish may occur intentionally, although it may also be the

result of carelessness.

On the other hand, the crime of genocide refers to speciﬁc or special intent:

dolus specialis.

In relationship to genocide, special intent means that the perpet-

rator committed an act while clearly seeking to destroy a particular group, in

whole or in part. In applying superior responsibility to the crime of genocide, it

is debated whether the superior must himself have had the necessary genocidal

intent, or if he must merely have known that his subordinates possessed geno-

cidal intent. In the latter case, a superior could be held liable for genocide com-

mitted by his subordinates even if he did not himself have genocidal intent.

This chapter identiﬁes the relationship between the doctrine of superior

responsibility and the mens rea for genocide. This study will show different

approaches demonstrated in the case law of the International Criminal Tribunal

for the Former Yugoslavia (ICTY), the International Criminal Tribunal for

1 The present work is an outcome of the project Transitional Justice –Prosecution and Punish-

ment of Crimes of the Past (IGA_PF_2017_016) and International Criminal Responsibility for

Special Intent Crimes (IGA_PF_2019_010), supported by the Internal Grant Agency of the

Palacky University in Olomouc.

2 As opposed to a superior’s responsibility for direct participation in the commission of a crime

or ordering the commission of a crime.

3 At the beginning of development of the deﬁnition of genocide, no mens rea for the crime itself

was discussed. However, Lemkin himself anticipated that not only should the principal perpet-

rators of genocide be held responsible, but also others directly or indirectly involved in its com-

mission. Raphael Lemkin, Axis Rule in Occupied Europe (Carnegie Endowment for

International Peace, 1944), p. 93.

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Rwanda (ICTR) and the Extraordinary Chambers in the Courts of Cambodia

(ECCC). First, the author will analyse the case law of the ICTR and point out

its rather ambiguous position(s). Subsequently the case law of the ICTY will be

discussed. In Prosecutor v. Stakićthe Trial Chamber (TCH) found that it must

be proven that a superior possessed the requisite special intent, whereas the

Appeals Chamber (ACH) in the Brđanin case found no difﬁculty in convicting

a superior of genocide based on a lower mens rea. Lastly, Case 002/02 from

the ECCC will be presented as the latest development on the superior responsi-

bility for special-intent crimes.

Furthermore, this work presents the importance of deﬁning the nature of

superior responsibility, and shows how a different perception of superior respon-

sibility could resolve the potential legal ambiguity. The author responds to the

common criticism of holding a superior responsible for a genocide committed

by his subordinates without he himself having had the special intent; i.e. that it

weakens the relationship between the principal crime and the superior if the spe-

cial intent is not required on the part of the superior. The causality requirement

will be introduced as a safeguard to the strong connection between the crime

committed by subordinates (in this case genocide) and the responsibility of the

superior in relation to the crime.

The study answers the question as to whether special intent is required for

the superior –a superior who is being held responsible based on his omission/

failure to prevent or punish a special-intent crime committed (or about to be

committed) by his or her subordinates. This study is especially relevant and

applicable in as much as application of the concept of superior responsibility by

the International Criminal Court (ICC) has been in a spotlight since the Bemba

case and also the appearance of the ﬁrst genocide charges in the al-Bashir case.

Moreover, superior responsibility in relation to the crime of genocide was

recently discussed in Case 002/02 at the ECCC. Superior responsibility and the

special intent required in the crime of genocide are well deﬁned by international

criminal tribunals and are often the subjects of discussion between academics.

However, the unique relationship between superior responsibility and special-

intent crimes has not been analysed in a sufﬁciently comprehensive and complex

fashion.

Some authors refer to this problem but to a very limited extent.

This

4 With some exceptions –see, for example, Patrick Shaun Wood, “Superior responsibility and

crimes of speciﬁc intent: A disconnect in legal reasoning?”(2013), Univeristy of Pretoria, avail-

able online at: https://pdfs.semanticscholar.org/965e/08477a927b76c8a7635d1

fa3b7b8d7d0f5f0.pdf; Joshua L. Root, “Some Other Mens Rea? The Nature of Command

Responsibility in the Rome Statute”(2013) 23 (119) Journal of Transnatl. L & Policy, pp.

119–156.

5 See, for example, William A. Schabas, Genocide in International Law: The Crimes of Crimes

(Cambridge University Press, 2000), pp. 305 and 312: “Unlike many war crimes, genocide

requires the prosecution to establish the highest level of speciﬁc intent. But command respon-

sibility is an offence of negligence, and exactly how a speciﬁc intent offence can be committed

by negligence remains a paradox. […] [I]t must be wrong in law to consider that genocide

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study thus offers a complex analysis of the relationship between superior respon-

sibility and genocide as a special-intent crime, focusing on the concept of super-

ior responsibility and its nature.

Genocide: a special-intent crime

The United Nations (UN) General Assembly ﬁrst recognized genocide as

a crime under international law during its ﬁfty-ﬁfth plenary meeting on

11 December 1946, motivated in large part by Lemkin’s lobbying. In its Reso-

lution, genocide was deﬁned as

a denial of the right of existence of entire human groups, as homicide is the

denial of the right to live of individual human beings, such denial of the

right of existence shocks the conscience of mankind, results in great losses

to humanity in the form of cultural and other contributions represented by

these human groups, and is contrary to moral law and to the spirit and aims

of the United Nations.

In 1948, genocide was codiﬁed as an independent crime in the Convention on

the Prevention and Punishment of the Crime of Genocide (Genocide Conven-

tion). The crime of genocide is deﬁned in Article II of the Genocide Conven-

tion as any of the following acts committed with intent to destroy, in whole or in

part, a national, ethnical, racial or religious group (emphasis added):

•Killing members of the group;

•Causing serious bodily or mental harm to members of the group;

•Deliberately inﬂicting on the group conditions of life calculated to bring

about its physical destruction in whole or in part;

•Imposing measures intended to prevent births within the group;

•Forcibly transferring children of the group to another group.

Genocide is deﬁned in the Rome Statute of the ICC (Article 6) in the same

terms as in the Genocide Convention, as well as in the statutes of other inter-

national and hybrid jurisdictions. Article II of the Genocide Convention intro-

duces the special-intent requirement with the wording “with intent to destroy”.

As such, the crime of genocide has two separate mental elements, namely

may be committed by a commander who is merely negligent.”The nexus between superior

responsibility and special-intent crimes is also not discussed in the newest contribution on the

modes of liability in international criminal law (Miles Jackson, “Command responsibility”in

Jereme de Hemptime, Robert Roth, and Elies van Sliedregt (eds.), Modes of Liability in Inter-

national Criminal Law, Cambridge University Press, 2019).

6 UNGA Res 1/96 (11 December 1946) UN Doc A/RES/1/96. This Resolution speciﬁes no

mens rea requirement.

7 UNGA Res 3/260 (9 December 1948) UN Doc A/RES/3/260, p. 277.

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a general one, that could be called “general intent”, and an additional special

intent embodied in the wording “with the intent to destroy, in whole or in

part, a national, ethnical, racial or religious group, as such”.

A general intent

normally relates to all objective elements of a crime (actus reus). On the other

hand, the “intent to destroy”constitutes an additional subjective requirement

that complements the general intent. Two different elements of this special

intent can be distinguished. Firstly, it must be shown that the perpetrator

wanted to destroy the group as such. Secondly, it must be proven that the per-

petrator sought the destruction of the group because of its national, racial,

ethnic or religious character.

As the Akayesu case was the ﬁrst case of the ICTR dealing with charges of

genocide, it provides a substantial deﬁnition of this special intent. The TCH in

the Akayesu case deﬁned the intent to destroy as “the clear intent to cause the

offence”

or in other words as the “key element”of an intentional offence

which is “characterized by a psychological relationship between the physical

result and the mental state of the perpetrator”.

This special intent is a mental

element, and as such it is difﬁcult to determine. In the absence of a confession

from the accused, the intent can be inferred from a certain number of presump-

tions of fact. The TCH found that it is possible to deduce the genocidal intent

inherent in a particular act charged from the general context of the perpetration

of other culpable acts systematically directed against that same group, whether

these acts were committed by the same offender or by others. Other factors,

such as the scale of the atrocities committed, their general nature, in a region or

a country, or furthermore the fact of deliberately and systematically targeting

victims on account of their membership of a particular group, while excluding

the members of other groups, can make it possible to infer the genocidal intent

of a particular act.

The case law of the ICTY further deﬁnes the special intent

required for the crime of genocide. In the Mladićcase, the TCH held that the

intent may also be inferred from the perpetration of acts which violate, or which

the perpetrators themselves consider to violate, the very foundation of a group.

The subsequent case law of the ad hoc tribunals further deﬁned the aspect of

special intent in relation to the crime of genocide.

However, questions remain

8 Otto Triffterer, “Genocide, its particular intent to destroy in whole or in part the group as

such”(2001) 14 Leiden Journal of International Law, p. 400.

9 Cécile Tournaye, “Genocidal Intent Before the ICTY”(2003) 52 International and Com-

parative Law Quarterly 2 p. 451.

10 Ibid., para. 518.

11 Ibid., para. 518.

12 Akayesu Case (Judgment) ICTR-96-4-T (2 September 1998), para. 523.

13 MladićCase (Review of the Indictment) IT-95-5-R61 and IT-95-18-R61 (11 July 1996),

para. 94.

14 KrstićCase (Judgment) IT-98-33-T (2 August 2001), para. 561, JelisićCase (Judgment) IT-

95-10-A (5 July 2001), para. 49. TadićCase (Judgment) IT-94-1-T (7 May 1997),

para. 658.

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as to the applicability of the requirement of genocidal intent with respect to

superiors under the superior responsibility doctrine.

Superior responsibility: general remarks

Superior responsibility is a doctrine of international criminal law addressing the

culpability of superiors who fail to prevent or punish international crimes com-

mitted by subordinates under their command. This doctrine is remarkable in

several aspects, but mainly in criminalizing acts of omission as opposed to ordin-

ary criminal acts involving an afﬁrmative commission. The terms “superior”and

“command”have sometimes been used interchangeably as labels for this form

of responsibility in international criminal law, but have also sometimes been dis-

tinguished in different contexts, in particular to distinguish between a military

superior –commander –and a civilian superior. The term “command responsi-

bility”gives a more accurate impression of the origin and purpose of the doc-

trine, whereas the term “superior responsibility”has become preferred in the

last decade because of its neutrality, referring to both civilian and military super-

iors. Superior responsibility at the ad hoc tribunals, as well as before the ECCC,

is understood as de facto superior responsibility and civilian superior responsibil-

ity, and the jurisprudence of the tribunals has applied the status of “superior”to

those in the military, including paramilitary organizations, as well as civilian

organizations. However, Article 28 of the Rome Statute distinguishes between

the responsibility of military superiors and other superiors.

Superior responsibility, as developed in the statutes of the ad hoc tribunals,

hybrid tribunals and the Rome Statute, has three basic elements. These basic

elements are required to establish superior responsibility, and have been clariﬁed

by the case law of international criminal tribunals. Although each element differs

somewhat between different tribunals, the core of the elements remains the

same. A superior may be held criminally responsible for the acts of his subordin-

ates if the following three conditions are met:

1 The existence of a superior–subordinate relationship of effective control

between the superior and the alleged principal offender(s);

2 Knowledge of the superior that the crime was about to be, was being, or

had been committed; and

3 Failure of the superior to take necessary and reasonable measures to prevent

or stop the crime, or to punish the perpetrator(s).

The doctrine of superior responsibility has gained widespread recognition since

its application in the Yamashita case. In order to deal with the atrocities com-

mitted in the former Yugoslavia, the UN Security Council in 1993 created the

15 Unless otherwise speciﬁed, the author employs the term “superior responsibility”to denote

responsibility attached to all superiors.

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ad hoc ICTY. Article 7 of the ICTY Statute deals explicitly with superior

responsibility.

The elements of superior responsibility were discussed and ana-

lysed for the ﬁrst time by the ICTY, in the Delalićcase, ﬁrst by the TCH,

and

subsequently the ﬁndings were conﬁrmed by the ACH.

The second ad hoc

international criminal tribunal was established in 1994 to deal with the situation

in Rwanda, and its Statute also explicitly mentions superior responsibility.

The

wording for superior responsibility is identical in both statutes. The Statute of

the ECCC adopted the wording of the ICTY and ICTR statutes and added an

effective control requirement directly into the text.

Negotiations for the establishment of a permanent international court which

would be responsible for trying the gravest breaches of international law date

back to the 1950s.

Nevertheless, the Statute of the ICC was promulgated

only in 1998. Superior responsibility can be found under Article 28 of the Stat-

ute. This Article sets out the parameters for how the ICC should apply the doc-

trine of superior responsibility, under which military commanders, persons

effectively acting as military commanders, and other superiors are held account-

able for the crimes committed by their subordinates. The wording of the ICC

16 “The fact that any of the acts referred to in articles 2 to 5 of the present Statute was commit-

ted by a subordinate does not relieve his superior of criminal responsibility if he knew or had

reason to know that the subordinate was about to commit such acts or had done so and the

superior failed to take the necessary and reasonable measures to prevent such acts or to

punish the perpetrators thereof.”UNSC, Statute of the International Criminal Tribunal for

the Former Yugoslavia (adopted 25 May 1993), Resolution 808/1993, 827/1993 and

amended by UNSC Resolution 1166/1998, 1329/2000, 114/2002, Art. 7(3).

17 DelalićCase (Judgment) IT-96-21-T (16 November 1998), para. 346.

18 Findings conﬁrmed in the DelalićCase (Judgment) IT-96-21-A (20 February 2001), paras.

189–198, 225–226, 238–239, 256, 263.

19 “The fact that any of the acts referred to in articles 2 to 4 of the present Statute was commit-

ted by a subordinate does not relieve his or her superior of criminal responsibility if he or she

knew or had reason to know that the subordinate was about to commit such acts or had done

so and the superior failed to take the necessary and reasonable measures to prevent such acts

or to punish the perpetrators thereof.”UNSC, Statute of the International Criminal Tribunal

for Rwanda (adopted 8 November, UNSC), UNSC Resolution 955 (2006) of 8 Novem-

ber 1994 and last amended by Security Council Resolution 1717 (UNSC Resolution 955,

2006) of 13 October 2006, Art. 6(3).

20 “The fact that crimes were committed by a subordinate does not relieve the superior of per-

sonal criminal responsibility if the superior had effective superior and control or authority and

control over the subordinate, and the superior knew or had reason to know that the subordin-

ate was about to commit such acts or had done so and the superior failed to take the necessary

and reasonable measures to prevent such acts or to punish the perpetrators.”Law on the

Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution

of Crimes Committed During the Period of Democratic Kampuchea (2001) (Cambodia), as

amended by NS/RKM/1004/006 (Oct. 27, 2004), Art. 29. The “effective control”require-

ment had already been established at that time as one of the core requirements of the doctrine

by both the ICTY and ICTR case law. See the DelalićCase,supra note 15, para. 378.

21 Cherif Bassiouni, International Criminal Law: International Enforcement (Brill, 2008),

pp. 119–120.

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Statute differs from the others previously mentioned, mainly in the different

mens rea requirement for military and for civilian superiors. For a military com-

mander it is required that the accused knew or should have known that the

forces were committing or about to commit crimes. On the other hand, for

non-military commanders it is required that the accused either knew, or con-

sciously disregarded, information which clearly indicated that subordinates were

committing or were about commit illegal acts. This different mens rea for civil-

ian superiors requires not only the possession of information regarding the

illegal acts, but also that the accused chose not to consider or to act upon it.

The last condition for the superior responsibility is the actus reus –the superior’s

failure to act. Under the Rome Statute, it is necessary to prove that the com-

mander failed to fulﬁl at least one of the duties listed under Article 28. It has to

be proven that the commander failed to prevent a crime, failed to repress crimes

or failed to submit the matter to the competent authorities for investigation and

prosecution.

Unfortunately, Article 28 of the Rome Statute, the statutes of ad hoc and

mixed tribunals and Article 86 of Additional Protocol I (AP I) do not provide

any express guidance on how to treat special-intent crimes under the concept of

superior responsibility.

Case law

International judicial organs in cases involving the superior responsibility doc-

trine have rendered a signiﬁcant number of judgments. Nevertheless,

a systematic reading of the case law reveals some inconsistencies in the applica-

tion of the doctrine. The ICTY and ICTR carried out the ﬁrst signiﬁcant post-

Genocide Convention attempts to punish the perpetrators of genocide, and

these tribunals have played a critical role in responding to the crime of genocide.

For the ﬁrst time since Nuremberg, the perpetrators of genocide have been

brought before the international community and held accountable for their

crimes. Moreover, the ad hoc tribunals have developed a signiﬁcant body of

legal precedent with respect to the crime of genocide, which is now available for

future use and application. The latest development is presented in Case 002/02

rendered by the TCH of the ECCC.

ICTR case law

In the Akayesu case, the ICTR had to deal for the very ﬁrst time with the ques-

tion of the special intent required for genocide in relation to superior responsi-

bility. Although Akayesu was not convicted in the end under the doctrine of

superior responsibility, the TCH made several interesting observations with

22 M. P. W. Brouwers, The Law of Command Responsibility (Wolf Legal Publishers, 2012),

pp. 8–9.

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respect to the doctrine and crime of genocide. The TCH made a distinction

between participation in terms of Articles 6(1) and 6(3) of the ICTR Statute,

based on the requisite mens rea.

Article 6(1) governs responsibility for

a person who planned, instigated, ordered, committed or otherwise aided and

abetted in the planning, preparation or execution of a crime; whereas Article

6(3) applies the doctrine of superior responsibility. In applying Article 6(1) of

the Statute, the TCH concluded that the superior “does not need to act know-

ingly”and it sufﬁces that he had reason to know that his subordinates committed

the crime (or were about to commit the crime).

On the other hand, the TCH

held that for conviction under the superior responsibility doctrine set out in Art-

icle 6(3), there has to be either “a malicious intent, or the negligence has to be

so serious as to be tantamount to acquiescence or even malicious intent”.

However, the TCH’s reasoning is rather confusing. The conclusion of the TCH

was reached using the same wording of the Commentary on the Additional

Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, and

Article 86 of AP I,

that imposes a responsibility upon the superiors if “they

knew, or had information which should have enabled them to conclude in the

circumstances at the time”. In my opinion, the Commentary on Article 86 of

AP I refers to the speciﬁcation of constructive knowledge (as opposed to the

actual knowledge) of the superior. This view is supported by the fact that there

was clearly no consensus during the negotiation of the AP on the extent of the

term “constructive knowledge”. Article 86 of AP I underwent considerable

changes during its drafting on the ﬁnal version. Article 86 of AP I refers to con-

structive knowledge as when a superior “had information which should have

enabled them to conclude in the circumstances at the time”. This ﬁnal version

was preceded by wording such as “should reasonably have known in the circum-

stances at the time”or “should have known”.

In this regard, the Commentary

also clariﬁes that the formulation of constructive knowledge does not mean that

it covers all cases of superior’s“negligence”but it “must be so serious that it is

tantamount to malicious intent”.

Given the ﬁnal wording of Article 86(2) of

AP I itself and taking account of the circumstance in which the term “malicious

intent”is being used in the Commentary, the interpretation of the TCH’s con-

clusions as regards special intent seems to be rather unsupported. Thus, the

interpretation of required mens rea presented by the TCH in the Akayesu case

could present limitations on superior responsibility. Moreover, as Akayesu was

not convicted for the crime of genocide based on Article 6(3), the conclusion

23 Article 6 of the ICTR Statute encompasses individual criminal responsibility. Statute of the

International Criminal Tribunal for the Former Yugoslavia,supra note 14.

24 Akayesu Case,supra note 10, para. 479.

25 Ibid., para. 489.

26 Ibid., para. 488.

27 Claude Pilloud (ed.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva

Conventions of 12 August 1949 (ICRC, 1987), p. 1012.

28 Ibid.

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behind the ﬁrst genocide trial at the ICTY remains unclear in a relation to

superior’s intent.

In the following cases, the Kayishema case and the Musema case, the applica-

tion of superior responsibility with respect to the crime of genocide is mixed

with direct participation based on Article 6(1).

Moreover, the TCH in the

Musema case refers to the ambiguous ﬁndings in the Akayesu case.

In the

cumulative ﬁndings, the Court uses argumentation and an evidentiary basis for

responsibility under both Article 6(1) and 6(3) of the Statute.

For this reason,

the ﬁndings requiring the special intent are not conclusive and do not serve as

a proper argument for requiring a special intent for superior responsibility. The

conviction based on both Article 6(1) and also 6(3) of the Statute, while con-

taining evidence providing for a ﬁnding of special intent on the part of the

accused, cannot be regarded as a requirement of special intent for a conviction

for the crime of genocide under the doctrine of superior responsibility.

In the Ntagerurra et al. case, in relation to one event, Imanishimwe was

found guilty of genocide only on the basis of superior responsibility. The TCH

concluded that there was not enough evidence to conclude that Imanishimwe

ordered the killing of refugees at the Gashirabwoba football ﬁeld, but he knew

or “should have known”of the killings based on numerous indications, such as

the presence of the refugees at the football ﬁeld, his contact with his subordin-

ate soldiers, and the size of the camp.

Nevertheless, the TCH did not expli-

citly rule on Imanishimwe’s state of mind with regard to the killings on the

football ﬁeld. The Chamber limited its ﬁndings to his presence on the football

ﬁeld on 11 April 1994 (while the killing occurred on 12 April 1994), his aware-

ness of refugees at the football ﬁeld, and Imanishimwe’s manipulation of the list

of refugees and removal of 16 Tutsis and one Hutu from the list. While one

could probably infer a genocidal intent based on these factors, the TCH did not

explicitly rule on this, and thus it is arguable that a special intent was not

required by the TCH in this case.

The change in the ambiguous ﬁndings by the Chambers of the ICTR was

brought by the Media case. In this case, the ACH expressly stated that it is not

necessary for the superior to have had the same intent as the perpetrator of the

29 For example, Kayishema was convicted for genocide with cumulative ﬁndings on responsibil-

ity under Article 6(1) and (3) of the Statute. Kayishema and Ruzindana Case (Judgment)

ICTR-95-1-T (21 May 1999), paras. 554–596. Musema was convicted for genocide with

cumulative ﬁndings on responsibility under Article 6(1) and (3) of the Statute. Musema Case

(Judgment) ICTR-96-13-T (27 January 2000), para. 936.

30 Musema Case (Judgment) ICTR-96-13-T (27 January 2000), paras. 130–131.

31 The cumulative convictions under Article 6(1)/7(1) and 6(3)/7(3) were later rejected by the

Tribunals. See, for example, BlaškićCase (Judgment) IT-95-14-T (3 March 2000),

para. 337.

32 The TCH used the “knew or should have known”standard as opposed to “knew or had

reason to know”enshrined in Article 6(3) of the ICTR Statute. Ntagerura Case (Judgment)

ICTR-99-46-T (25 February 2004), paras. 653–657.

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criminal act, in the current case direct and public incitement to commit

genocide.

In the Bagosora and Nsengiyumva case, the ACH examined whether

the TCH made an error when it did not establish that Nsengiyumva shared his

subordinates’intent in relation to the genocide committed by the

subordinates.

The ACH held that, for a conviction as a superior pursuant to

Article 6(3) of the Statute, it is not necessary for an accused to have had the

same intent as the perpetrator of the criminal act. The ACH was satisﬁed if it

was proved that the superior knew or had reason to know that the subordinate

was about to commit such act or had done so. In this regards, the ACH made

a reference to the Media case. The ACH concluded that it was not required to

establish that Nsengiyumva shared his subordinates’intent to ﬁnd that he could

be held responsible as a superior. As such, the TCH did not err in ﬁnding that

Nsengiyumva was liable as a superior without considering evidence suggesting

that he might not have had such intent.

ICTY case law

Following the ICTR case law, the ICTY entered many convictions on genocide

charges. In a relation to nexus between superior responsibility and genocide the

most relevant cases are the Stakićcase, the Brđanin case and the Karadžićcase

as those cases draw a line on the genocidal intent requirement for superior

responsibility. On the other hand, for example in the Krstićcase, there is no

unambiguous conclusion on the applicability of special intent to superior

responsibility. Although Krstićwas not held responsible under Article 7(3) of

the Statute, the TCH found that he fulﬁlled the criteria for conviction under

superior responsibility for the crime of genocide. However, it stated that it

would not enter a conviction under superior responsibility because of the ﬁnd-

ing of guilt under Article 7(1) of the Statute. While with regard to special intent

the TCH found that “his intent to kill the men thus amounts to a genocidal

intent to destroy the group in part”,

it nonetheless also held that the mens rea

for superior responsibility was proven by evidence showing that he “had to have

been aware of the genocidal objectives”.

This reasoning of the TCH suggests

that a speciﬁc intent on the part of a superior would not be required for

a conviction under Article 7(3) of the Statute.

The Stakićcase is the ﬁrst case where the ICTY made a clear conclusion on

the applicability of special intent to superior responsibility. In 2002, the TCH

considered charges of genocide based on superior responsibility in its Rule 98bis

33 Media Case (Judgment) ICTR-99-52 (3 December 2003), para. 865.

34 Bagosora and Nsengiyumva Case (Judgment) ICTR-98-41-A (14 December 2011),

para. 384.

35 Ibid.

36 KrstićCase (Judgment) IT-98-33-T (2 August 2002), para. 652.

37 Ibid., para. 648.

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motion of acquittal. The TCH held that it stems from the unique nature of

genocide that the dolus specialis is required for responsibility under Article

7(3).

At the same time, the TCH noted a possible difﬁculty of proving special

intent via acts of omission on the part of civilian leaders. In its judgment the

TCH then concluded that it was not proven beyond reasonable doubt that

anyone, including any of Stakić’s subordinates, had dolus specialis, thus Article

7(3) of the Statute was not applicable.

Based on this ruling it is not clear

whether the superior must himself possess a speciﬁc intent and at the same time

be aware of the speciﬁc intent of his or her subordinates; however, it seems that

the TCH required a speciﬁc intent on the part of the superior as well as his

awareness of the speciﬁc intent of his or her subordinates. If the awareness

would not be required, the core elements of superior responsibility, with the

special nexus between superior and subordinates, would be watered down. The

TCH furthermore argued, with regard to joint criminal enterprises (JCEs), that

that mode of liability cannot replace a core element of a crime.

Moreover, the

TCH added that in order to “commit”genocide, the elements of that crime,

including dolus specialis, must be met. Although this argumentation was used in

relation to a JCE, the TCH clearly extended this to superior responsibility.

The TCH in the Brđanin case in its decision on motion for acquittal pursuant

to Rule 98bis required speciﬁc intent for the JCE in its third form (JCE III)

but not for superior responsibility in a relation to genocide.

Following the

appeal against the TCH’s decision, the ACH held that a superior does not need

to possess special intent, as well as the participant to the JCE III and aider and

abettor.

The ACH used a comparison to a JCE III and aiding and abetting as

the other forms of liability for which a speciﬁc intent is not required on the part

of the accused. The ACH held that

the third category of joint criminal enterprise is no different from other

forms of criminal liability which do not require proof of intent to commit

a crime on the part of an accused before criminal liability can attach. Aiding

and abetting, which requires knowledge on the part of the accused and sub-

stantial contribution with that knowledge, is but one example. Command

responsibility liability, which requires the Prosecution to establish that

a Commander knew or had the reason to know of the criminality of subor-

dinates, is another.

38 StakićCase (Decision on Rule 98bis Motion for Judgement of Acquittal) IT-97-24-T

(31 October 2002), para. 92.

39 StakićCase (Judgment) IT-97-24-T (31 July 2003), para. 559.

40 Ibid., para. 530.

41 Ibid., para. 559.

42 Brđanin Case (Decision on motion for acquittal pursuant to Rule 98 bis) IT-99-36-T

(28 November 2003) paras. 30 and 55–57.

43 Brđanin Case (Decision on interlocutory appeal) IT-99-36-A (19 March 2004) para. 7.

44 Brđanin Case (Decision on interlocutory appeal) IT-99-36-A (19 March 2004) para. 7.

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The ACH held that it is critical to distinguish the mens rea requirement for the

crime of genocide from the mental requirement of the mode of liability by

which criminal responsibility is alleged to attach to the accused.

Even though

the ACH discussed this in relation to the JCE III, the argumentation provided

and comparison to superior responsibility suggests that this explanation is clearly

applicable to superior responsibility as well. Later on, this conclusion was inte-

grated into the Trial Judgment, which provided further analysis by referring to

the previous case law and statutory interpretation of Article 7(3) of the

Statute.

The TCH referred to the Ntagerurra et al. case, stating that “[this]

case strongly supports the conclusion that a superior need not possess the spe-

ciﬁc intent in order to be held liable for genocide pursuant to the doctrine of

superior criminal responsibility”.

However, as analysed above, the Ntagerurra

et al. case does not in fact provide strong arguments for this conclusion, espe-

cially when the ﬁndings are compared to the ones in the Stakićcase.

The

TCH in the Brđanin case explicitly held that the superior must only have

known or had reason to know of his or her subordinate’s speciﬁc intent.

The

necessity to distinguish between the mens rea of subordinates and that of the

superior was correctly noted.

The TCH stressed that there is no inherent

reason why, having veriﬁed that it applies to genocide, Article 7(3) should apply

to the crime of genocide differently than to any other crime in the Statute.

The ﬁndings from the Brđanin case were followed in subsequent cases. The

special intent was not required in the Blagojević/Jokićcase with the reference to

the Brđanin case.

The TCH came to the conclusion that:

the mens rea required for superiors to be held responsible for genocide pur-

suant to Article 7(3) is that superiors knew or had reason to know that

their subordinates (1) were about to commit or had committed genocide

and (2) that the subordinates possessed the requisite speciﬁc intent.

However, from the formulation of TCH it is not clear whether it was only

required that the subordinates should have the special intent, or whether it was

required that the superior knows about the special intent of his subordinates.

However, it is clear that the superior is not required to share such a special

intent in order to be responsible on the basis of superior responsibility.

45 Ibid.

46 Brđanin Case (Judgment) IT-99-36-T (1 September 2004), para. 720.

47 Ibid., para. 718.

48 Reference made to the StakićRule 98bis Decision. Brđanin Case (Judgment) IT-99-36-T

(1 September 2004), para. 717.

49 Ibid., para. 721.

50 Ibid., para. 720.

51 Ibid.

52 Blagojević& JokićCase (Judgment) IT-02-60-T (17 January 2005), para. 686.

53 Ibid.

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In 2016, the TCH found that Karadžićfailed in his duty to punish the per-

petrators of the killings which occurred prior to the time when he joined the

Srebrenica JCE on the evening of 13 July 1995. His genocidal intent was

deemed proven based on the events from 13 July 1995 onward, when Karadžić

speciﬁcally agreed to the killing aspect of the Srebrenica JCE. Thus Karadžić

was held responsible under superior responsibility for genocide in relation to

crimes committed before he had actually acquired genocidal intent. For the

crimes committed after he acquired genocidal intent, he was held responsible

under the JCE concept, as his genocidal intent was proven.

ECCC case law

The case law of the ECCC provides the most recent development on the rela-

tion between genocide and superior responsibility. In 2018, the TCH in Case

002/02 found Nuon Chea guilty of genocide based on superior responsibility

in a relation to the ethnic Cham Muslim minority. The TCH made a clear dis-

tinction between mens rea requirements for superior responsibility and JCE.

The TCH found that Nuon Chea shared the intent, including the special

intent, of the other JCE members to commit the crimes encompassed by the

common purpose. However, the TCH expressly stated that it was not possible

to identify or infer genocidal intent on the part of Nuon Chea regarding the

Cham, nor to ﬁnd beyond reasonable doubt that he knew that genocide was

committed against the Cham.

Yet, the evidence supported a ﬁnding that

Nuon Chea, along with Pol Pot, exercised ultimate decision-making authority

to execute the genocidal policy, and convicted him on this charge pursuant to

the doctrine of superior responsibility. Thus, Nuon Chea was held responsible

for the crime of genocide by killing members of the Cham ethnic and religious

group based on his superior responsibility.

For the second accused, Khieu

Samphan, the TCH concluded that he did not possess the same power within

the regime to assist or facilitate the execution of the genocidal policy and

declined to convict him for genocide against the Cham.

The TCH also discussed Nuon Chea’s state of mind in relation to genocide

of Vietnamese. For the crime of genocide by killing members of the Vietnamese

ethnic group through a JCE, the TCH required speciﬁc intent. The TCH

found that Nuon Chea “shared the direct, discriminatory and speciﬁc intent of

other JCE members”and thus was held responsible for committing genocide

the Vietnamese ethnic group through a JCE.

54 KaradžićCase (Judgment) IT-95-5/18 (24 March 2016), paras. 5849–5850.

55 Case 02/002 (Judgment) 002/19-09-2007 (16 November 2018), paras. 4155–4156. See

also Case 02/002 (Summary of the Judgment) 002/19-09-2007 (16 November 2018),

para. 50

56 Case 02/002 (Judgment) 002/19-09-2007 (16 November 2018), para. 4200.

57 Ibid., para 4325

58 Ibid., para, 4161.

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The distinction between the mental element’s requirement for the JCE and

superior responsibility is crucial. It comes with a surprise that the TCH dis-

cussed the distinction between Nuon Chea’s state of mind in relation to the acts

constituting a crime of genocide committed through the JCE and committed

by his subordinates. Of even greater surprise is that the TCH came with the

determinative demand for the accused’s state of mind. The TCH was satisﬁed

with the ﬁnding that Nuon Chea at the very least had reason to know that

genocide had been, or was about to be, committed against the Cham and thus

can be convicted for the crime of genocide based on his superior responsibility

even without proving his genocidal intent. The case law of ad hoc tribunals did

not provide, with the exception of the Karadžićcase, the distinction between

mental elements for superior and co-perpetrator participating in the JCE. Even

though the Karadžićcase in fact provides factual distinction between the

mental elements, the TCH did not expressly state this distinction and did not

prove any reasoning. As such, the development in Case 002/02 is a crucial step

for applicability of superior responsibility to special-intent crimes. It is regret-

table that the TCH did not provide any contextual analysis why the special

intent is required on the part of a JCE participant and not required for

a superior.

Despite this, the latest development brought by the TCH in Case 002/02 is

a plausible step in applicability of superior responsibility to special-intent crimes

as not requiring a special intent for the superior and corresponds with the spe-

cial nature of superior responsibility. It is even more plausible that the TCH

made, for the very ﬁrst, a clear distinction between requirements for mental

elements for a superior and for a participant in the JCE.

The nature of the superior responsibility

Irvin-Erickson discusses Lemkin’s position on superior responsibility as being

two-pronged. Not only can individuals who committed an act be prosecuted

individually, but simultaneously the leaders who conducted and orchestrated

a series of such acts can be charged for the acts of such individuals. As he fur-

ther explained:

Such a position place[s] criminal responsibility with the leaders and elites

who set in motion programs of mass atrocities or war crimes, in order to

achieve certain ends in a conﬂict, but who could not be shown to have [dir-

ectly ordered or caused] each individual act or crime.

This makes it clear that Lemkin had in mind the doctrine of superior responsi-

bility. Unfortunately, Lemkin did not discuss the requisite mens rea in a relation

59 Douglas Irvin-Erickson, “Prosecuting Sexual Violence at the Cambodian War Crimes Tribu-

nal: Challenges, Limitations, and Implications”(2018) Human Rights Quarterly, p. 576.

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to special-intent crimes. Nevertheless, Irvin-Erickson also pointed out in his

study on the Lubanga case in connection with Lemkin’s work that the mental

element is often satisﬁed if it is proven that the defendant “should have known

that the crime was going to occur as a result of his or her actions or inactions as

a superior in the chain of command”.

He does, however, make a distinction

with regard to sexual crimes, where the ad hoc tribunals have required

a superior’s direct knowledge of the crime.

It may seem that Irvin-Erickson

does not ﬁnd a need to prove special intent on the part of the superior. How-

ever, he did not make a distinction between a superior’s responsibility in relation

to his own participation in the crime (such as a situation when a superior is

responsible for aiding and abetting or ordering the crime, etc.) and superior

responsibility, which is the subject of this study.

In this chapter I posit that the key point in the question of approaching spe-

cial-intent crimes through superior responsibility seems to be the nature of

superior responsibility itself. At the same time, however, it can be argued that

the position of superior responsibility itself is not that clear. When comparing

superior responsibility to aiding and abetting, the distinction is made that

a superior is being held for his or her own failure(s). This is, however,

a conclusion that has not been directly reached by the tribunals. The case law

emanating from the aftermath of World War II tends to view superior responsi-

bility as a mode of participation, and the superiors were convicted for their par-

ticipation in the principal crime committed by their subordinates. This concept

was referred to as “acquiescence”, and as such, the superiors were held respon-

sible for the crimes committed by subordinates, under the condition that the

superiors “had knowledge and had been connected to such criminal acts, either

by way of participation or criminal acquiescence”.

Superior responsibility was

understood as a method of participation in the subordinates’crime. In the

Yamashita case, this responsibility shifted towards forms of strict liability.

either case, the superior was charged and convicted for the principal crime.

60 Ibid., p. 577.

61 Douglas Irvin-Erickson, “Sixty years of failing to prosecute sexual crimes: From Raphael

Lemkin at Nuremberg to Lubanga at the International Criminal Court”in Mary Michele

Connellan and Christiane Frohlich (eds.), A Gendered Lens for Genocide Prevention (Palgrave

2018), pp. 86–87. Similarly, Irvin-Erickson, “Prosecuting Sexual Violence”, p. 577.

62 Nuremberg trial of U.S. v. Wilhelm von Leeb (the High Command trial), Trials of War Crim-

inals before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. XI

(Buffalo: Hein, 1997), p. 555. See also U.S. v. Wilhelm von List (the Hostage trial), Trials of

War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10,

Vol. X, pp. 215–218.

63 United Nations War Crimes Commission, Law Reports of Trials of War Criminals (HMSO,

1947), Volume III, pp. 18–22. Maria Prévost, “Race and War Crimes: The 1945 War Crimes

Trial of General Tomoyuki Yamashita”(1992) 14(3) Human Rights Quarterly, p. 330.

64 Chantal Meloni, “Command Responsibility: Mode of Liability for the Crimes of Subordinates

or Separate Offence of the Superior”(2007) Journal of International Criminal Justice,

p. 623.

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Article 86(2) of AP I, as well as the statutes of ad hoc tribunals, are silent as to

the nature of superior responsibility. Article 28 of the Rome Statute raises more

questions than it answers with respect to the nature of the doctrine.

The ad hoc tribunals’approach

The early case law from the ICTY indicates that superiors were in fact held

responsible for the principal crime. This approach has also been given support

by the Secretary-General’s report relating to the ICTY Statute, which described

superior responsibility as “imputed responsibility”.

In the Čelebićicase, the

TCH held that “[t]he type of individual criminal responsibility for the illegal

acts of subordinates …is commonly referred to as ‘command responsibility’”.

The TCH continued that the fact “[t]hat military commanders and other per-

sons occupying positions of superior authority may be held criminally respon-

sible for the unlawful conduct of their subordinates is a well-established norm of

customary and conventional international law”.

The TCH cited the Secretary-

General’s report in support of its conclusion. The ACH in the Čelebićicase also

held that where a superior has effective control over his subordinates “he could

be held responsible for the commission of the crimes if he failed to exercise such

abilities of control”.

In the Aleksovski case, the TCH discussed the distinction

between responsibility under Article 7(1) and Article 7(3) of the ICTY Statute.

The TCH concluded that “[T]he doctrine of superior responsibility makes

a superior responsible not for his acts sanctioned by Article 7(1) of the Statute

but for his failure to act.”However, it still found that a superior could be “held

responsible for the acts of his subordinates”if he did not prevent the perpetra-

tion of the crimes of his subordinates or punish them for the crimes.

A turning point can be seen in conclusion of the TCH in the Halilovićcase.

In that case the TCH ﬁrst acknowledged that up to that time the superior had

consistently been “responsible for the crimes of his subordinates”.

However,

the TCH reached a different conclusion and held that the superior is “merely

responsible for his neglect of duty”.

The TCH clariﬁed that “a commander is

not responsible as though he had committed the crime himself”.

This was

65 UNSC, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Reso-

lution 808 (1993) [contains text of the Statute of the International Tribunal for the Prosecu-

tion of Persons Responsible for Serious Violations of International Humanitarian Law

Committed in the Territory of the Former Yugoslavia since 1991], UNSC S/25,704,

3 May 1993.

66 DelalićCase,supra note 15, para. 331.

67 Ibid., para. 333.

68 DelalićCase,supra note 16, para. 198.

69 Aleksovski Case (Judgment) IT-95-14/1-T (25 June 1999), para. 67.

70 HalilovićCase (Judgment) IT-01-48-T (16 November 2005), para. 53

71 Ibid., para. 293.

72 Ibid., para. 54.

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followed in the subsequent ICTY case law. In the Hadžihasanovićcase, the

TCH followed the ﬁndings made in the Halilovićcase, emphasising that super-

ior responsibility “is the corollary of a commander’s obligation to act”. As such,

the TCH argued that superior responsibility is a responsibility for the omission/

failure to prevent or punish crimes committed by subordinates, and that the

“responsibility is sui generis distinct from that deﬁned in Article 7(1) of the

Statute”.

Another analysis concerning the nature of superior responsibility was provided

in the Orićcase. The TCH in the Orićcase pointed out that ﬁnding

a commander

responsible ‘for the acts of his subordinates’[…] does not mean, however,

that the superior shares the same responsibility as the subordinate who com-

mits the crime […], but that the superior bears responsibility for his own

omission in failing to act. In this sense, the superior cannot be considered

as if he had committed the crime himself, but merely for his neglect of

duty.

This is the distinctive element in responsibility under Article 7(1) of the ICTY

Statute, and the TCH went on to call superior responsibility under Article 7(3)

of the ICTY Statute a responsibility sui generis.

The Rome Statute

According to the wording of Article 28 of the Rome Statute, a superior “shall

be criminally responsible for crimes within the jurisdiction of the Court”com-

mitted by his subordinates “as a result”of his “failure to exercise control prop-

erly”. From a literal interpretation of this provision it follows that the superior is

responsible for the principal crime committed by his subordinates.

However,

the introductory sentence of Article 28 providing for superior responsibility

states that “[i]n addition to other grounds of criminal responsibility under this

Statute for crimes within the jurisdiction of the Court: (a) A military com-

mander […]”(emphasis added). This sentence is sometimes interpreted so that

it “does not substitute, but supplements all forms of participation as listed in

Article 25(3) sub a-f. Article 28 thus extends the scope of individual criminal

responsibility for perpetrators in the position of superiors”.

73 HadžihasanovićCase (Judgment) IT-01-47-T (15 March 2006), para. 75.

74 OrićCase (Judgment) IT-03-68-T (30 June 2006), para. 293.

75 Meloni, supra note 62, p. 633.

76 Otto Triffterer, “Causality, a Separate Element of the Doctrine of Superior Responsibility as

Expressed in Art. 28 Rome Statute”(2002) 15(1) Leiden Journal of International Law, pp.

179–186.

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The language used in Article 28 seems quite ambiguous. Some consider that

what the Rome Statute adopts is a “concept of superior responsibility as a form

of liability for omission”.

It is nevertheless often argued that the literal inter-

pretation of Article 28 indicates that superior responsibility is rather meant to be

kind of imputed liability for the base crime resulting from a superior’s

omission.

In the Bemba case, the Pre-Trial Chamber (PTCH) concluded that

“a superior may be held responsible for prohibited conduct of his subordinates

for failing to fulﬁl his duty”.

However, the PTCH went on to add that super-

ior responsibility can be better understood “when seen against the principle that

criminal responsibility for omissions is incurred only where there exists a legal

obligation to act”.

Later, the TCH expressly stated that “Article 28 provides

for a mode of liability, through which superiors may be held criminally respon-

sible for crimes within the jurisdiction of the Court committed by his or her

subordinates.”

The TCH noted the importance of distinguishing the responsi-

bility of a commander under Article 28 and a responsibility of a person who

“commits”a crime within the jurisdiction of the Court.

Sui generis omission and the requirement of causality

The nature of superior responsibility has been subjected to many diverse aca-

demic discussions. Mettraux argues that a superior is not held responsible for

the crimes of subordinates, but is responsible in respect to crimes committed by

subordinates based on his own failure to act.

Root argues that superior

responsibility as enshrined in Article 28 of the Rome Statute should be inter-

preted as a distinct crime. However, treating superior responsibility as a distinct

crime does not seem to be supported by the case law nor consistent with cus-

tomary international law. In Root’s opinion, treating superior responsibility as

a mode of liability would “muddy”the heightened mens rea of speciﬁc intent

crimes, or even cause that superior responsibility to not be applied to speciﬁc

intent crimes.

However, I do not agree that treating superior responsibility as

a mode of liability would automatically deprive it of being used to establish

responsibility for special-intent crimes, as a distinction has to be made between

77 Micaela Frulli, “Exploring the applicability of command responsibility to private military con-

tractors”(2010) 15(3) Journal of Conﬂict & Security Law, p. 452.

78 Barrie Sander, “Unraveling the Confusion Concerning Successor Superior Responsibility in

the ICTY Jurisprudence”(2010) 23(1) Leiden Journal of International Law, p. 132.

79 Bemba Case (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/

05-01/08-424 (15 June 2009), para. 405.

80 Ibid.

81 Bemba Case (Judgment) ICC-01/05-01/08-3343 (21 March 2016), para. 171.

82 Ibid., para. 173.

83 Guénaël Mettraux, The Law of Command Responsibility (Oxford University Press, 2009), pp.

37–95.

84 Root, p. 155.

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the requisite mens rea for superiors and that for subordinates. The prevailing

academic opinion is that superior responsibility is a sui generis form of culpable

omission which has no equivalence to any other form of criminal responsibility

in either domestic or international criminal law.

My suggestion is to treat

superior responsibility as a sui generis form of responsibility for omission with

respect to subordinates’crimes, which would not require a special intent on the

part of the superior, but knowledge by the superior about the subordinates’spe-

cial intentions with regard to special-intent crimes. Nonetheless, some authors

argue that there would be too little connection between the conduct of the

superior and the conduct of subordinates if the relationship would be limited to

the superior’s knowledge of his subordinates’intentions.

This, however, is

where the causality requirement should come into play. The requirement that

the conduct of a person charged with a crime must be causally linked to the

crime itself is a general and fundamental requirement of criminal law in most

national systems.

Inasmuch as it is generally accepted that the requirement for

justifying criminal punishment by the ICC is higher than for justifying punish-

ment within domestic legal systems, it seems plausible that this principle must

apply at the international level as well.

ICTY jurisprudence on the causality requirement

The ﬁrst ICTY case where the requirement of causality was discussed is the

Delalićcase. Although the TCH arguably opened a door for application of the

causality requirement in the “duty to prevent”, some authors and subsequent

ICTY case law have interpreted the TCH’sﬁndings as a denial that the causality

requirement covers both types of duties: the duty to punish and the duty to

prevent.

The TCH pointed out that a superior cannot be held responsible for

prior violations committed by subordinates if a causal nexus would be required

between such violations and the superior’s failure to punish those who commit-

ted them.

The TCH held that a causal connection cannot possibly exist

between an offence committed by a subordinate and the subsequent failure of

a superior to punish the perpetrator for that same offence.

The Chamber’s

85 Kai Ambos, Treatise on International Criminal Law. Volume I: Foundations and General

Part (Oxford University Press, 2013), pp. 189–197; Meloni, supra note 62, pp. 191–207;

Mettraux, supra note 81, pp. 37–95.

86 For example, Mettraux, supra note 81, p. 56.

87 Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (Oxford University Press,

2009), p. 124.

88 This is reﬂected in Article 5 of the Rome Statute, which restricts the Court’s mandate to the

most serious crimes of concern to the international community as a whole.

89 Erasmus Mayr, “International Criminal Law, Causation and Responsibility”(2014) 14(4/5)

International Criminal Law Review, p. 863.

90 DelalićCase,supra note 15, para. 400.

91 Ibid.

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main argument was that failure to punish cannot causally inﬂuence a crime

which has already been committed.

In a strict sense this is true, but this view

taken by the TCH does not take into account the idea of preventing the com-

mission of future crimes through punishing previous offences. Furthermore, the

TCH explained that while a causal connection between the failure of

a commander to punish past crimes committed by subordinates and the com-

mission of any such future crimes is not only possible but likely, no such causal

link can possibly exist between an offence committed by a subordinate and the

subsequent failure of a superior to punish the perpetrator for that same

offence.

On the other hand, the TCH held that “a necessary causal nexus may

be considered to be inherent in the requirement of crimes committed by subor-

dinates and the superiors’failure to take the measures within his power to pre-

vent them”.

This conclusion reached by the TCH could be seen as an open

the door for the application of a causality requirement in the duty to prevent.

However, in the same judgment the Chamber stated that it had found no sup-

port for the existence of a requirement of proof of causation as a separate elem-

ent of superior responsibility, and therefore concluded that “causation has not

traditionally been postulated as a condition sine que non for the imposition

a responsibility on superiors for their failure to prevent or punish offences com-

mitted by their subordinates”.

The TCH went on to add, without offering

any support for its proposition, that customary international law did not require

proof of a causal relationship between the conduct of the accused and the

crimes of his subordinates.

Controversially, this is regarded by some authors as

a rejection of the causality requirement in both types of omission: failure to pre-

vent as well as failure to punish.

The TCH in the Blaškićcase held that a causal link might be considered

inherent in the requirement that the superior failed to prevent the subordinates’

crimes.

However, the ACH disagreed and found that “the existence of causal-

ity between a commander’s failure to prevent subordinates’crimes and the

occurrence of these crimes is not an element of command responsibility that

requires proof by the Prosecution in all circumstances of a case”.

Even though

there is no direct provision on whether the judgment of the ACH is binding, in

92 Mayr, supra note 87, p. 863.

93 DelalićCase,supra note 15, para. 400.

94 Ibid., para. 399.

95 Ibid., para. 398. Cited again in Kordić&Čerkez Case (Judgment) IT-95-14/2-A (17. 12.

200), para. 447.

96 The ACH in the Blaškićcase noted that the DelalićTCH’sﬁnding on that point did not cite

any authority for the statement. BlaškićCase (Judgment) IT-95-14-A (29 July 2004),

para. 76.

97 Christine Bishai, “Superior Responsibility, Inferior Sentencing: Sentencing Practice at the

International Criminal Tribunals”(2013) 11 (3) Journal of International Human

Rights, p. 85.

98 BlaškićCase,supra note 29, para. 339.

99 BlaškićCase,supra note 94, para. 77.

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the Aleksovski case the ACH came to the conclusion that the construction of the

Statute requires that the decision of the ACH is binding on the TCH.

100

This

means that the conclusion made by the ACH in the Blaškićcase is binding on

all trial chambers. Acknowledging the ﬁndings of the ACH in Blaškićcase, the

ACH in the Kordić&Čerkez case held that existence of causality between

a commander’s failure to prevent subordinates’crimes does not have to be

proven.

101

Despite acknowledging the position of the ACH in Blaškićcase, the TCH in

the Hadžihasanovićcase came as close to reintroducing the requirement of caus-

ality as the binding jurisprudence of the ACH would allow. The TCH went so

far as to state that a causality requirement is necessary to hold a commander

responsible as “command responsibility may be imposed only when there is

a relevant and signiﬁcant nexus between the crime and the responsibility of the

superior accused of having failed in his duty to prevent”.

102

The ICC’s approach

Article 28 of the Rome Statute stipulates that crimes committed by subordinates

are a result of the superior’s failure to exercise proper control over them.

103

The

PTCH II and the TCH III in the Bemba case concluded that the causality

requirement has to be established between a superior’s failure to prevent and

the crime. While the PTCH II considered it sufﬁcient to prove that the com-

mander’s omission “increased the risk of the commission of the crimes”, the

TCH III did not elaborate further on the requisite standard. The TCH only

held that the causality requirement would be clearly satisﬁed “when the crimes

would not have been committed, in the circumstances in which they were, had

the commander exercised control properly, or the commander exercising control

properly would have prevented the crimes”.

104

The Chamber stressed that this

standard is “higher than that required by law”.

105

This may suggest that

although the Chamber used the “but for test”, the “increased risk test”sufﬁces

to establish the causality requirement between superior’s failure to prevent and

the crime.

The causality requirement in the Bemba case led to a disagreement among the

judges. Two of the three judges issued separate opinions, in which they pre-

sented different views on this topic. Judge Steiner expressed her belief that the

TCH failed to provide sufﬁcient reasoning in its consideration on the interpret-

ation of the wording “as a result of”and the causality requirement. Judge

100 Aleksovski Case (Judgment) IT-95-14/1-A (24 March 2000), paras. 112–113.

101 Kordić&Čerkez Case (Judgment) IT-95-14/2-A (17 December 2004), para. 832.

102 Hadžihasanović& Amir Kubura Case,supra note 71, para. 192.

103 Bert Swart, The Legacy of the ICTY (Oxford University Press, 2011), p. 392.

104 Bemba Case,supra note 79, para. 213.

105 Ibid., § 213.

Genocide and superior responsibility 185

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Steiner held that a causal link between the commander’s failure to exercise con-

trol properly and the crimes is required, referring to the analysis of the decision

of the PTCH II in the Bemba case.

106

Furthermore, she agreed with the conclu-

sion of the PTCH II that “it is only necessary to prove that the commander’s

omission increased the risk of the commission of the crimes charged in order to

hold him criminally responsible under article 28(a) of the Statute”.

107

However,

she noted that this increased risk test should be applied with a high probability

assessment, so that “there is a high probability that, had the commander dis-

charged his duties, the crime would have been prevented or it would have not

been committed by the forces in the manner it was committed”.

108

Judge

Ozaki concluded that a nexus between the commander’s failure to exercise con-

trol properly and the commission of the crimes is required.

109

He supported

this conclusion based on the object and purpose of the Statute. Furthermore, he

went on to clarify that the wording of “as a result of”indicates that “the stand-

ard adopted [is] more than a merely theoretical nexus to the crimes”.

110

Judge

Ozaki also favoured an assessment of whether the results were “reasonably

foreseeable”.

111

The causality requirement was part of the defence appeal.

112

However, the ACH did not address this issue in the Appeal Judgment.

113

The causality requirement for superior responsibility was also brieﬂy men-

tioned in the Ntaganda case. In its decision on conﬁrmation of charges, the

PTCH II held that “[t]he […] failures of Mr. Ntaganda increased the risk of

the commission of crimes by UPC/FPLC members during the time-frame rele-

vant to the charges”.

114

However, it is not clear whether this means that the

PTCH II requires the causality nexus, in form of the “increased risk test”, for

the establishment of superior responsibility. The TCH held Ntaganda respon-

sible as a direct perpetrator and indirect perpetrator, omitting ﬁndings on his

responsibility as a commander under Article 28 of the Statute.

115

106 Bemba Case (Separate Opinion of Judge Sylvia Steiner) ICC-01/05-01/08-3343

(8 June 2018), para. 17.

107 Ibid., para. 23.

108 Ibid., para. 24.

109 Bemba Case (Separate Opinion of Judge Kuniko) ICC-01/05-01/08-3343 (8 June 2018),

para. 9.

110 Ibid., para. 23.

111 Ibid.

112 Bemba Case (Public Redacted Version of Appellant’s document in support of the appeal,

ICC-01/05-01/0) 38 September 2016, paras. 138–140.

113 Bemba Case (Judgment) ICC-01/05-01/08-3636 (8 June 2019), paras. 44–66. Bemba

Case (Public Redacted Version of Appellant’s document in support of the appeal) ICC-01/

05-01/03(8 September 2016), paras. 138–140.

114 Ntaganda Case (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the

Charges of the Prosecutor Against Bosco Ntaganda) ICC, ICC-01/04-02/06

(9 July 2014), para. 174.

115 Ntaganda Case (Judgment) ICC-01/04-02/06 (8 July 2019). See also Ntaganda Case

(Public redacted version of “Prosecution’s Closing Brief”) ICC-01/04-02/06 (7 Novem-

ber 2018), paras. 389–413.

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Conclusions

The main purpose of this study has been to analyse the mens rea requirement for

a superior in relation to the crime of genocide committed by subordinates, and

determine whether the superior must himself have had genocidal intent. The ICTR

and ICTY case law contains multiple convictions of a superior based on Article

6(3)/Article 7(3) of the Statute on the crime of genocide. The early case law sug-

gests (the Akayesu case) or openly advocates for (the Stakićcase) requiring a special

intent on a part of the superior in order to be held responsible under the superior

responsibility doctrine. However, those ﬁndings were disputed by the subsequent

cases where the superior’s special intent was not regarded as a legal requirement for

superior responsibility. It can be argued that in the case law development, the ACH

in the Brđanin case put forward a precedent that has been followed ever since. In

2018, the TCH in Case 002/02 (ECCC) also held that a superior need not possess

speciﬁc intent. However, it has never been properly explained why the superior

need not possess speciﬁc intent. This is clearly not a rhetorical question given the

ambiguous ﬁndings at the ad hoc tribunals. I agree with the recent case law that

does not require a special intent on a part of a superior if he is being held respon-

sible under the superior responsibility doctrine. However, this conclusion deserves

more deep analysis and explanation than just referral to a distinction that must be

made between mens rea for the crime of genocide and the mental requirement of

the mode of liability. This argument is correct; however, I believe this needs to be

looked at more closely. I suggest that the key issue in the question of treating spe-

cial-intent crimes within superior responsibility seems to be the nature of superior

responsibility itself. The early ICTY case law treated superior responsibility as an

imputed liability, holding superiors criminally responsible for the unlawful conduct

of their subordinates. This approach was abandoned by the Haliliovićcase, as it

was correctly stated that the stronger responsibility is in an omission to prevent or

punish crimes committed by subordinates. The language used in Article 28 of the

Rome Statute seems quite ambiguous. However, in the Bemba case the TCH came

to the conclusion that superior responsibility is a mode of liability through which

superiors may be held criminally responsible for crimes committed by subordinates.

The proposed solution in this work is to treat superior responsibility as a sui generis

form of culpable omission which has no equivalence with any other criminal

responsibility in either domestic or international criminal law. My suggestion is to

further treat superior responsibility as a sui generis responsibility for omission with

respect to subordinates’crimes, which would not require special intent on part of

the superior, but knowledge by the superior about subordinates’intentions –i.e.

a superior’s knowledge about his subordinates’special intent in relation to special-

intent crimes.

Furthermore, I do not agree that there would be too little connection

between the conduct of the superior and the conduct of subordinates if the rela-

tionship would be limited to the superior’s knowledge of his subordinates’

intentions. This connection should be safeguarded by the requirement of causal-

ity: causality between the conduct of the superior and the crimes committed by

Genocide and superior responsibility 187

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the subordinates. Causality should be required between the failure of the

accused and the commission of crimes by subordinates (with regard to his duty

to prevent the crimes), and between his failure and the resulting impunity of the

perpetrators (in regard to his duty to punish the crimes). Although the existence

of a causality requirement has not found support in the case law of the ad hoc

tribunals, the wording of the Rome Statute and the Bemba case strongly support

the existence of such a requirement in relation to superior responsibility.

Cases

Akayesu Case (Judgment) ICTR-96-4-T (2 September 1998).

Aleksovski Case (Judgment) IT-95-14/1-T (25 June 1999).

Bemba Case (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Stat-

ute) ICC-01/05-01/08-424 (15 June 2009).

Bemba Case (Judgment) ICC-01/05-01/08-3343 (21 March 2016).

BlaškićCase (Judgment) IT-95-14 (29 July 2004).

BlaškićCase (Judgment) IT-95-14-T (3 March 2000).

Brđanin Case (Decision on interlocutory appeal –Rule 98bis Appeal Deci-

sion) IT-99-36-A (19 March 2004).

Brđanin Case (Judgment) IT-99-36-T (1 September 2004).

DelalićCase (Judgment) IT-96-21-A (20 February 2001)

DelalićCase (Judgment) IT-96-21-T (16 November 1998).

HadžihasanovićCase (Judgment) IT-01-47-T (15 March 2006).

HalilovićCase (Judgment) IT-01-48-T (16 November 2005).

JelisićCase (Judgment) IT-95-10-A (5 July 2001).

KaradžićCase (Judgment) IT-95-5/18 (24 March 2016).

Kordić&Čerkez Case (Judgment) IT-95-14/2-A (17 December 2004).

KrstićCase (Judgment) IT-98-33-T (2 August 2001).

KrstićCase (Judgment) IT-98-33-T (2 August 2002).

Media Case (Judgment) ICTR-99-51-T (28 November 2007).

MladićCase (Review of the Indictment) IT-95-5-R61 and IT-95-18-R61

(11 July 1996).

Musema Case (Judgment) ICTR-96-13-A (16 November 2001).

Ntagerura Case (Judgment) ICTR-99-46-T (25 February 2004).

OrićCase (Judgment) IT-03-68-T (30 June 2006).

StakićCase (Decision on Rule 98bis Motion for Judgment of Acquittal) IT-

97-24-T (31 October 2002).

StakićCase (Judgment) IT-97-24-T (31 July 2003).

TadićCase (Judgment) IT-94-1-T (7 May 1997).

U.S. v. Wilhelm von Leeb (the High Command trial), Trials of War Criminals

before the Nuremberg Military Tribunals under Control Council Law No. 10,

Vol. XI (Buffalo: Hein, 1997), 512–543.

U.S. v. Wilhelm von List (the Hostage trial), Trials of War Criminals before

the Nuremberg Military Tribunals under Control Council Law No. 10, Vols

X and XI, 1271.

188 Michala Chadimová

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9‘Kill them all and let God sort

them out’, or why religiously

motivated terrorism should not

be confused with the crime of

genocide

Milena Ingelevič-Citak and Marcin Marcinko

Introduction

In a speech given in New York City in 1953, Raphael Lemkin referred to the

Holodomor perpetrated by the Soviet authorities as the most brutal technique of

the long, sustained attack on the Ukrainian nation.

According to Lemkin, the

Soviet terror aimed at Ukrainians took the form of ‘four-pronged genocide’, and

the Great Famine of 1932–1933 was only one of the stages of destruction of the

people of Ukraine.

For Lemkin, broadly understood, state terror was carried out

in Soviet-controlled lands, and it was germane to the idea of genocide he had

developed. Indeed, the notion of ‘state terror’(or ‘state terrorism’), although not

legally deﬁned, generally includes intentional violent actions on the part of state

authorities directed against national or other minorities.

Under this formula, the

crime of genocide would be the most brutal and most serious manifestation of

state terror if at the same time it met the legal prerequisites of genocide.

The above qualiﬁcation, however, may not necessarily refer to actions taken

by non-state actors considered to be terrorist organisations. Theoretically,

a terrorist organisation could commit the crime of genocide against a particular

group treated as a protected group. By way of example, in June 2016 in

a report published under the title ‘“They Came to Destroy”: ISIS Crimes

Against the Yazidis’, the Independent International Commission of Inquiry on

the Syrian Arab Republic, based on collected and veriﬁed information,

1 See Raphael Lemkin, ‘Soviet Genocide in Ukraine’in Roman Serbyn (ed), In Memoriam

Raphael Lemkin (1900–1959) (Maisternia Knyhy 2009), 31–36.

2 Douglas Irvin-Erickson, Raphaël Lemkin and the Concept of Genocide (Penn Press 2016) 54.

3 Ibid., 46.

4 This report is based on 45 interviews with survivors, religious leaders, smugglers, activists, law-

yers, medical personnel and journalists. Furthermore, considerable documentary material

(including hundreds of statements, photographs, satellite images and reports) was used to cor-

roborate the information collected by the Commission –see United Nations Human Rights

Council ‘“They Came to Destroy”: ISIS Crimes Against the Yazidis’(15 June 2016), A/

HRC/32/CRP.2, para 4 (UNHRC Report).

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presented the dramatic situation of the Yazidis of Sinjar, who fell victim to atro-

cities perpetrated by an armed non-state actor calling itself the ‘Islamic State’

(ISIS).

ISIS had been charged with and was recognised by the Commission as

the perpetrator of genocide on the Yazidis.

According to the members of the

Commission, ‘ISIS has committed, and continues to commit, the crime of geno-

cide (…) against the Yazidis’

, and this crime ‘has not primarily been accom-

plished through killings, though mass killings of men and women have

occurred’.

Furthermore, the Commission shared the commonly accepted opin-

ion that ‘the Yazidis are (…) referred to as an ethno-religious group’,

particu-

larly underlining that:

Little, if any, debate surrounds the Yazidis’identity as a distinct religious

group (…). Without exception, diverse members of the Yazidi community

interviewed were of the view that the Yazidis constitute a separate religious

denomination, with distinct modes of worship.

Acting upon these ﬁndings, the Commission stated that considering their reli-

gion, Yazidis were deemed a protected group within the meaning of Article II

of the 1948 Convention on the Prevention and Punishment of the Crime of

Genocide

(hereinafter ‘Genocide Convention’), inasmuch as public declar-

ations as well as the conduct of ISIS and its ﬁghters, analysed and screened by

the Commission, explicitly demonstrated that the intention of ISIS was to exter-

minate the Yazidis of Sinjar, in whole or in part, which satisﬁed the deﬁnition of

the crime of genocide.

At the same time, however, the Commission observed

5 As Krzysztof Strachota explains, ‘[t]he history of the Islamic State is the living history of

Sunni radicalism and terrorism. Before June 2014, the organisation known today as the

Islamic State was a typical terror organisation, organically linked with al-Qaeda and centred

around its founder, the Jordanian Abu Musab al-Zarqawi, who was an outstanding al-Qaeda

commander. In the meantime, it changed its name several times: before it became the Islamic

State, it was known under such names as the Islamic State of Iraq, then the Islamic State of

Syria and Iraq (ISIS, ISIL or Daesh)’(Krzysztof Strachota, ‘The Middle East in the Shadow

of Islamic State’(2015) 52 Centre of Eastern Studies ‘Point of View’1, 8). See also Can

Acun, ‘Neo al Qaeda: The Islamic State of Iraq and the Sham (ISIS)’(2014) 10 SETA Per-

spective 1, 1–2; Charles Lister, ‘Proﬁling the Islamic State’, Brookings Doha Center Analysis

Paper, 13/2014, 4–5 www.brookings.edu/wp-content/uploads/2014/12/en_web_lister.

pdf [accessed 7 January 2019].

6 While the report analyses a range of international crimes, it speciﬁcally seeks to determine

whether ISIS has committed the crime of genocide (UNHRC Report (n 4) para 3).

7 Ibid., para 201.

8 Ibid., para 202.

9 Ibid., para 101.

10 Ibid., para 103.

11 Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the

General Assembly of the United Nations on 9 December 1948, 278 UNTS 1021.

12 See UNHRC Report (n 4) para 202 in ﬁne.

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that the notion of ‘genocide’in common understanding and public imagination

often deviates from the legal deﬁnition of the crime:

The colloquial use of the term “genocide”, steeped in images of the Holo-

caust and the Rwandan genocide, has tended to signify the organised exter-

mination of masses of civilians, regardless of the speciﬁc intention behind

the killings.

Understood in this way, however, such notions of genocide do not satisfy all the

legal elements of this crime laid down in international law. As a result of such

an approach, certain acts of violence tend to be regarded as acts of genocide,

especially when staged by organisations or groups considered as criminal. The

foregoing misinterpretations may happen, ﬁrst of all, in cases of acts of violence

committed by terrorist groups who, as a rationale for their criminal activities,

put forward the religion of their members. Their terrorist activity is usually

aimed at the believers of other religions and, taking into account their extreme

cruelty and their intention to inﬂict as much damage as possible, their acts of

terrorism are sometimes mistaken for genocide (e.g. in information campaigns),

highlighting the above-mentioned difference between the religion of the terror-

ists and the religion of their victims. According to the authors of this present

chapter, however, this is a far-reaching simpliﬁcation and confusion of two dif-

ferent forms of criminal violence. The deﬁnition of genocide in international law

functions as a treaty-based and very speciﬁcdeﬁnition, although in truth its

elements leave a wide margin for interpretation, as has been manifested by the

case law of the International Criminal Tribunal for the Former Yugoslavia

(ICTY) and the International Criminal Tribunal for Rwanda (ICTR). On the

other hand, terrorist activity covers a wide spectrum of prohibited acts. Further-

more, acts of terrorism belong to the most grievous crimes of an international

nature and terrorists alone are often referred to as the enemies of mankind

(hostes generis humani), due to their similarity to the sixteenth-century (and sub-

sequent ages of) pirates. Despite the above characterisation, international law

still lacks a uniform and universally accepted deﬁnition of terrorism.

Since, however, the crime of genocide has been deﬁned in treaty law, it must

be determined, and proven, whether acts of terrorism motivated by religion are

or may be ex deﬁnitione deemed to be directed against a protected group –in

particular a religious group –and how the motivations of religion-led terrorist

organisations should be viewed from the standpoint of the required genocidal

intent. Mainly due to this genocidal intent, which constitutes a unique element

of genocide (dolus specialis), acts of terrorism are difﬁcult to classify as genocidal,

and given their heinous nature it therefore seems important to answer the issue

of why acts of terrorism driven by religion cannot be recognised as genocide.

For the purpose of the integrity of this argument and for the sake of proving

13 Ibid., para 13.

‘Kill them all and let God sort them out’193

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the thesis, the above reasoning should be accompanied by a concise description

of the characteristics of crimes that, in light of international law, would qualify

as acts of terrorism.

How to deﬁne terrorism in international law?

The international community is well aware of the dangers that terrorism brings.

Although the stakes raised by terrorism are usually national or regional in

nature, the impact of terrorist campaigns is often international. Domestic terror-

ism often has spill-over effects into other countries, and linkages with foreign

terrorist groups are not uncommon. Therefore, the drawing up of appropriate

conventions that would interpret terrorism as an ‘international crime’–pros-

ecuted commonly by all states regardless of the nationality of the perpetrator

and the place where the act is committed –has long been the subject of consid-

eration. However, the work on international treaties in this ﬁeld has constantly

come up against obstacles impeding the draft of a single convention wholly

regulating the subject. One of these obstacles is the lack of a uniﬁed and precise

deﬁnition of terrorism.

The insistence on a strict deﬁnition of the phenomenon in question is con-

nected with difﬁculties of a political, legal and moral nature. Modern terrorism

is far from being uniform and its ideological background is multifarious. Sub-

stantial differences exist in, inter alia, the underlying ideological and political

motivations, world views, religion, principles of the ‘philosophy of violence’and

the attitude towards violence itself. Few subjects have been treated so extensively

and, at the same time, so illogically. The ambiguity and vagueness of the terms

lead to discretionary interpretations of terrorism and to conscious and deliberate

extensions of the term to activities that have nothing in common with

terrorism.

Consequently, dozens of deﬁnitions of terrorism exist that either

reduce it to ‘political extremism’,‘radicalism’or to the entire spectrum of activ-

ities involving the use of force and violation of the rights and freedoms of indi-

viduals. According to some other deﬁnitions, terrorism consists of unlawful acts

of violence that are treated as serious crimes and subject to severe punishment

according to domestic criminal codes and penal laws.

While the efforts of states and various international organisations, especially

those undertaken after the end of the Cold War, have admittedly resulted in the

14 Marian Flemming, ‘Terroryzm polityczny w międzynarodowym prawodawstwie [Political

Terrorism in International Legislation]’(1996) 3/4 Wojskowy Przegląd Prawniczy 1, 7.

15 For example, for a number of journalists, as well as certain governmental spokespersons and

various debaters, the term ‘terrorism’is used as a synonym for ‘rebellion’,‘civil strife’,‘insur-

rection’,or‘rural or urban guerrilla war’, as well as a dozen other phenomena –including

‘genocide’–a fact which has caused a great deal of confusion among the general public as

regards the real meaning of the term. The deﬁnitions provided by journalists, governmental

spokespersons and public debaters often reﬂect the purely political deﬁnition, and, more

importantly, tend to be descriptive.

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adoption of international treaties –both at the global and regional level –that

provide legal grounds for the ﬁght against terrorism, there is no precise, uniform

legal deﬁnition of terrorism which is digestible for all states. The international

anti-terrorist conventions that presently exist and are in force are not uniform;

on the one hand one may distinguish between general conventions that focus

on complex regulation of the problem in question, and detailed or ‘sectoral’

conventions that merely address the speciﬁc category of acts of terrorism, while

on the other hand one may classify the anti-terrorist conventions into universal

(with global reach) and regional ones. It is worth emphasising that among the

universal anti-terrorist conventions the vast majority are ‘sectoral’conventions,

while in the case of regional conventions more general ones prevail.

Similarly, there are different approaches to the deﬁnition of terrorism in vari-

ous international treaties. Although regional conventions of a general nature

contain very elaborate, even case-by-case deﬁnitions of terrorism and terrorist

offences, universal ‘sectoral’conventions focus exclusively on determination of

a speciﬁc category of terrorist attacks, completely omitting the general deﬁnition

of the phenomenon; in certain cases the very word ‘terrorism’is not even used.

What is more, the categories of prohibited acts, according to ‘sectoral’conven-

tions, are usually so extensive that they may also comprise offences difﬁcult to

recognise as terrorist. However, they are subject to prosecution and punishment

pursuant to such conventions. As an example, the hijacking of a plane by an

ordinary criminal, aiming at securing considerable ﬁnancial gain in the form of

a ransom, or the release of his criminal associates in lieu of the life of hostages,

is without doubt an act prohibited by the Hague Convention of 1970,

although it does not constitute an example of international terrorism.

Due to the complexity of the problem of terrorism and the controversies it

generates, and considering the difﬁculties with its legal deﬁnition, international

law rather indicates acts that may be referred to as acts of terrorism. So while

there is a group of offences recognised as terrorist offences according to treaty

law, they are considered offences of serious gravity which cannot be used as jus-

tiﬁcation to enable and enhance a higher effectiveness in counteracting and

combating all forms of terrorism. While terrorist offences present ‘an evil in

itself’(mala in se)

and consequently may be perceived as separate international

offences, what is interesting is that they may be viewed as a category of war

crimes or crimes against humanity. Under the circumstances of an armed

16 Zdzisław W. Galicki, ‘International Multilateral Treaties and Terrorism’in Kazimierz Lan-

kosz, MichałChorośnicki and PawełCzubik (eds), Walka z terroryzmem w świetle prawa

międzynarodowego [The Fight Against Terrorism in International Law] (Wydawnictwo STO

2004) 12.

17 Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on

16 December 1970, 860 UNTS 12325.

18 Antonio Cassese, International Criminal Law (2nd edn, OUP 2008) 171.

19 See Nicholas N. Kittrie, ‘Comments: Panel on Terrorism and Political Crimes in International

Law’(1973) 67 AJIL 104.

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conﬂict, an act of terrorism may be recognised as a war crime if, generally speak-

ing, it involves an act of violence (or a threat thereof) directed against civilians

or other individuals not directly participating in the hostilities and if its primary

objective is to intimidate the civilian population.

During times of peace, ter-

rorism as a crime against humanity constitutes, in essence, a qualiﬁed form of

terrorism as a prohibited act. It occurs when an act of terrorism is a part of

a massive and systematic attack targeting a civilian population (although terrorist

activities as such may be conducted against state representatives or even combat-

ants), and when it additionally takes the speciﬁc form of a criminal activity (such

as assassination, extermination, causing enormous suffering, grievous bodily

injury or physical or mental harm, torture, rape or enforced disappearance).

It must be emphasised that at present there are only rare instances in inter-

national law wherein terrorism is regarded as a political offence; it is distinctly

stressed, though, that all acts of terrorism, along with the methods and measures

used to conduct terrorist activity, ought to be regarded as criminal offences irre-

spective of where they were committed and by whom. Still, the word ‘terrorism’

is obviously linked with activity that involves violence and intimidation, mainly

directed against innocent persons, for the purpose of forcing governments or

society to fulﬁl political demands made by the perpetrators of such acts. The

decisive factor serving as a criterion to evaluate acts of terrorism should be, how-

ever, the presence of a criminal intent to perpetrate such an offence rather than

the reasons that lead to its actual commitment. The criminal aspect of the dis-

cussed problem has been addressed by, among others, the United Nations

(UN) General Assembly in paragraph 3 of its Declaration on Measures to Elim-

inate International Terrorism, contained in the annex to Resolution 49/60 of

9 December 1994. According to the General Assembly, terrorist acts are:

criminal acts intended or calculated to provoke a state of terror in the gen-

eral public, a group of persons or particular persons for political purposes

[and] are in any circumstance unjustiﬁable, whatever the considerations of

20 Cassese (n 18) 177. For more on this question, see Roberta Arnold, The ICC as a New

Instrument for Repressing Terrorism (Transnational Publishers 2004) 66–202; Daniel

O’Donnell, ‘International Treaties Against Terrorism and the Use of Terrorism during

Armed Conﬂict and by Armed Forces’(2006) 88 IRRC 853, 863–870; Hans-Peter Gasser,

‘Acts of Terror, “Terrorism”and International Humanitarian Law’(2002) 84 IRRC

547–570; José L. Rodríguez-Villasante y Prieto, ‘Terrorist Acts, Armed Conﬂicts and Inter-

national Humanitarian Law’in Pablo A. Fernández-Sánchez (ed), The New Challenges of

Humanitarian Law in Armed Conﬂicts –In Honour of Professor Juan Antonio Carrillo-

Salcedo (Martinus Nijhoff 2005) 13–46.

21 Cassese (n 18) 177. See also Arnold (n 20) 202–275; Michael A. Newton and Michael P. Scharf,

‘Terrorism and Crimes Against Humanity’in Leila N. Sadat (ed), Forging a Convention for

Crimes Against Humanity (CUP 2011) 262–278; Vincent-Joël Proulx, ‘Rethinking the Jurisdic-

tion of the International Criminal Court in the Post-September 11th Era: Should Acts of

Terrorism Qualify As Crimes Against Humanity?’(2004) 19 AmUIntlLRev 1009–1089.

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a political, philosophical, ideological, racial, ethnic, religious or any other

nature that may be invoked to justify them.

This approach was reiterated in further Assembly resolutions concerning inter-

national terrorism.

In a similar manner, the criminal nature of terrorist acts

and their objectives is expressed in Article 2(1) of the draft comprehensive con-

vention against international terrorism, which has been prepared by the Ad Hoc

Committee on International Terrorism,

established by the UN General

Assembly in 1996. Although the Committee has not ﬁnished its works yet,

and the deﬁnition of terrorism under Article 2 of the draft convention is purely

informal, it contains elements that are already commonly attributed to acts of

terrorism. According to Article 2(1), a person commits a terrorist offence if that

person –by any means –unlawfully and intentionally causes:

(a) Death or serious bodily injury to any person; or

(b) Serious damage to public or private property, including a place of public

use, a State or government facility, a public transportation system, an

infrastructure facility or the environment; or

graph 1(b) of this article, resulting or likely to result in major economic

loss, when the purpose of the conduct, by its nature or context, is to

intimidate a population, or to compel a Government or an international

organization to do or abstain from doing any act.

Also, a credible and serious threat of committing an offence as set forth in

Article 2(1), an attempt to commit a terrorist offence, as well as other forms of

complicity and contribution in order to commit such an offence, is also deemed

to be a terrorist offence.

Terrorism is still mostly deﬁned by the listing of

offences that are incorporated in its scope. This catalogue is obviously not

22 UNGA, Declaration on Measures to Eliminate International Terrorism, UNGA Res 49/60

(9 December 1994), Annex.

23 See, for example: UNGA Res 50/53 (11 December 1995) para 2; UNGA Res 51/210

(17 December 1996) para 2; UNGA Res 54/110 (9 December 1999) para 2; UNGA Res

56/88 (12 December 2001) para 2; UNGA Res 57/27 (19 November 2002) para 2; UNGA

Res 60/43 (8 December 2005) para 2; UNGA Res 63/129 (11 December 2008) para 4;

UNGA Res 66/105 (9 December 2011) para 4; UNGA Res 69/127 (10 December 2014)

para 4; UNGA Res 72/123 (7 December 2017) para 4; UNGA Res 73/211 (20 Decem-

ber 2018) para 4.

24 The text of the draft comprehensive convention –see UNGA ‘Report of the Ad Hoc Com-

mittee established by General Assembly Resolution 51/210 of 17 December 1996’(28 Jan-

uary –1 February 2002) 6th Session (2002) UN Doc Supp No 37 (A/57/37, Annex I–III).

25 In fact, the negotiations are deadlocked because of different opinions of states on the ﬁnal

deﬁnition of terrorism.

26 Report of the Ad Hoc Committee (n 24) Annex II, Art 2(1).

27 Ibid., Art 2(2–4).

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exhaustive and should increase progressively as new detailed conventions are

adopted internationally that address speciﬁc aspects of terrorist activity.

Undoubtedly, a constant characteristic of all offences regarded as terrorist

(including those motivated by religion) is to create terror among people or to

intimidate a government or an international organisation to further the terror-

ists’cause.

The notion of ‘religious group’in the deﬁnition of the crime of

genocide and victims of religiously motivated terrorism

In contrast to terrorism, genocide –being an international crime –was deﬁned

very precisely. The deﬁnition of genocide is included in the Convention on the

Prevention and Punishment of the Crime of Genocide of 1948. According to its

Article II, genocide encompasses:

any of the following acts committed with intent to destroy, in whole or in

part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

The above-cited deﬁnition has been repeated expressis verbis in the statutes of

both ad hoc international criminal tribunals –the ICTY

and ICTR

–as well

as in the Rome Statute of the International Criminal Court.

It is also accepted

by the vast majority of states and conﬁrmed in their internal criminal law regula-

tions. Thus, taking into account this commonly accepted legal deﬁnition, the

crime of genocide is deﬁned by two characteristic elements:

28 Cf. Art 2(1) of the International Convention for the Suppression of the Financing of Terror-

ism, adopted by the UN General Assembly on 9 December 1999, UNGA Res 54/109

(9 December 1999), Annex. See also UNSC Res 1566 (8 October 2004) UN Doc S/RES/

1566 (2004) para 3.

29 See Art 4 of the Updated Statute of the International Criminal Tribunal for the former Yugo-

slavia www.icty.org/x/ﬁle/Legal%20Library/Statute/statute_sept09_en.pdf [accessed

7 January 2019].

30 See Art 2 of the Statute of the International Criminal Tribunal for Rwanda www.ohchr.org/

en/professionalinterest/pages/statuteinternationalcriminaltribunalforrwanda.aspx [accessed

7 January 2019].

31 See Art 6 of the Rome Statute of the International Criminal Court, adopted on 17 July 1998,

2187 UNTS 38544.

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1 An objective (material) element –actus reus –consisting of the particular

prohibited acts enumerated in subparagraphs (a) to (e) of Article II of the

Genocide Convention; and

2 A subjective element –mens rea –consisting of the special intent to destroy,

in whole or in part, a particular protected group enumerated in Article II of

the Genocide Convention.

The Genocide Convention speciﬁes four protected groups: national, ethnic,

racial or religious. No provision, however, determines the deﬁnition and mean-

ing of those groups, which has been left to international jurisprudence and the

doctrine of international law.

In light of these sources (and particularly in the

light of the ICTR jurisdiction), a ‘religious group’is a group ‘whose members

share the same religion, denomination or mode of worship’.

It should be

underlined that the concept of a ‘religious group’must be assessed ‘in the light

of a particular political, social and cultural context’,

as well as the historical

context.

Furthermore, as noted by the ICTY, in order to deﬁne each of the

protected groups (including a religious group) on the basis of scientiﬁcally

objective criteria would be ‘inconsistent with the object and purpose’of the

Genocide Convention.

The treaty deﬁnition of genocide refers only to physical destruction of rela-

tively permanent groups whose membership in most cases is somehow ‘auto-

matic’, irrespective of their will –mostly due to birth. This is what happens in

the cases of nationality, ethnic origin and race; only in the case of religious

groups is membership based on some sort of choice.

However, the above-

quoted functional deﬁnition of ‘religion’proposed by the ICTR, grounded in

the objective practices of group members, seems to be rather narrow in light of

the broader view in international law of human rights. A deﬁnition based on

subjective systems of religious beliefs would deﬁne a religious group as a group

who practice the same religion and share the same creed, beliefs, doctrines or

rituals. There is room for controversy over whether atheistic groups would qual-

ify under such a deﬁnition. While they are hardly are a ‘homogeneous group’,

32 Cf. Prosecutor v Goran Jelisić(Judgement) ICTY-95-10-T (14 December 1999) para 62;

Prosecutor v Radislav Krstić(Judgement) ICTY-98-33-T (2 August 2001) para 542; Prosecu-

tor v Vidoje Blagojevićand Dragan Jokić(Judgement) ICTY-02-60-T (17 January 2005)

para 640.

33 MichałMatyasik and Przemysław Domagała, Międzynarodowe trybunały karne oraz inne

instrumenty sprawiedliwości tranzytywnej [International Criminal Tribunals and Other Instru-

ments of Transitional Justice] (Wydawnictwo Diﬁn 2012) 38.

34 See Prosecutor v Jean-Paul Akayesu (Judgement) ICTR-96-4-T, T Ch I (2 September 1998)

para 515.

35 Prosecutor v Georges Anderson Nderubumwe Rutaganda (Judgement and Sentence) ICTR-

96-3-T, T Ch I (6 December 1999) para 56.

36 Krstić(n 32) para 557.

37 Ibid., para 556.

38 Akayesu (n 34) para 511. See also Cassese (n 18) 130.

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nonetheless they appear to share a similar belief system. Therefore, the concept

of a religious group should have an adequate capacity to also incorporate athe-

ists and non-theists, who may be the target and objective of genocidal attacks

due to their own ‘beliefs’and functional ‘mode of worship’(i.e. by not worship-

ing at all).

In order to qualify a particular prohibited act as the crime of genocide, it is

extremely important to determine the particular positive characteristics of

a given group, and not categorise them based on a lack of certain features. As

the International Court of Justice (ICJ) stated, ‘[i]t is a matter of who those

people are, not who they are not’.

In practice, though, it is not easy to evalu-

ate a speciﬁc human group in order to determine whether it qualiﬁes as

a protected group. Luckily, the judgments of the ad hoc international criminal

tribunals offer aid in this respect, as one may ﬁnd guidelines useful for the pro-

cess of assessing whether a given group qualiﬁes as a protected one. The afore-

mentioned tribunals elaborated two concepts in this regard –one objective and

the other subjective.

The objective concept was presented in detail by the ICTR in the Akayesu

case with respect to belonging to a protected tribe. The Tribunal based its deci-

sion on tangible signs of belonging to the group and on an objective assessment

of the group. The evidence admitted by the Tribunal included testimonies con-

cerning the information contained in identity documents (which were a remnant

of the Belgian colonial authority) that identiﬁed their holders as members of

a tribe (Hutu or Tutsi).

The Tribunal found that Tutsi witnesses credibly

testiﬁed about their ethnic identity and stated that the former Belgian colonisers

distinguished them in a similar manner –on the basis of ethnicity.

Based on

the facts presented during the proceedings, the Tribunal also found that the

Tutsi had constituted a stable and permanent ethnic group ‘identiﬁed as such by

all’.

Thus, protected groups must be stable and permanent groups, and mem-

bership in such groups must be of a continuous and often irremediable charac-

ter; therefore, they are the opposite of ‘mobile’(dynamic) groups (such as

political groups), which one joins through an individual voluntary

commitment.

As regards the subjective concept, the assessment of the status of belonging

to a national, ethnic, racial or religious group is performed from the perspective

of individuals who wish to separate such a group from the rest of the commu-

nity, the most important aspect being the convictions of the genocide

39 David L. Nersessian, Genocide and Political Groups (OUP 2010) 24.

40 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43,

para 193.

41 Akayesu (n 34) para 702.

42 Ibid., para 172.

43 Ibid., para 702.

44 Ibid., para 511.

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perpetrators, who deﬁne (i.e. stigmatise) the group which is the victim of their

genocidal acts. Stigmatisation means the classiﬁcation of potential victims based

on the assessment of the characteristics of a given group (e.g. black skin, church

attendance) and it makes it possible to determine whether a targeted population

constitutes a separate national, ethnical, racial or religious group in the eyes of

the alleged perpetrators.

Importantly, the correct determination of the relevant

group as protected and stigmatised by the perpetrator has to be made on a case-

by-case basis,

consulting both the objective and subjective criteria and

applying them to the given situation,

and taking into account both the

relevant evidence proffered and the political and cultural context.

It is worth noting that in light of the ICTY’s judgment in the Jelisićcase, the

above-mentioned stigmatisation may be made by way of positive or negative cri-

teria. A ‘positive approach’would consist of the perpetrators of the crime of

genocide distinguishing a group by the characteristics which they deem to be

peculiar to a national, ethnical, racial or religious group. A ‘negative approach’

would consist of identifying individuals as not being part of the group to which

the perpetrators of the crime of genocide consider that they themselves belong,

and which to them displays speciﬁc national, ethnical, racial or religious charac-

teristics. Thus, all individuals rejected in this way would –by exclusion –consti-

tute a distinct group.

However, the concept of a ‘negative’stigmatisation has

been rejected both by the ICTY’s Appeals Chamber

and the ICJ

as being

inconsistent with the object and the purpose of the Genocide Convention of

1948.

Taking into account the purpose of the Genocide Convention, it is widely

acknowledged that the intention to destroy must target at least a ‘substantial’

part of the group.

According to the ad hoc international criminal tribunals,

the correct interpretation of the term ‘in part’requires the intention to destroy

‘a considerable number of individuals who are part of the group’

or ‘a reason-

ably signiﬁcant number, relative to the total of the group as a whole’.

How-

ever, the part which is targeted must be ‘signiﬁcant enough to have an impact

45 Jelisić(n 32) para 70.

46 Blagojevićand Jokić(n 32) para 667. Cf. Krstić(n 32) para 557.

47 Prosecutor v. Alfred Musema (Judgement and Sentence) ICTR-96-13-A, T Ch

I (27 January 2000) paras 161, 163.

48 Rutaganda (n 35) para 58.

49 Jelisić(n 32) para 71.

50 See Prosecutor v. Milomir Stakić(Appeals Chamber Judgement) ICTY-97-24-A

(22 March 2006) paras 16–28.

51 See Bosnia and Herzegovina v Serbia and Montenegro (n 40) paras 193–196.

52 Jelisić(n 32) para 82.

53 Prosecutor v Clément Kayishema and Obed Ruzindana (Judgement) ICTR-95-1-T, T Ch II

(21 May 1999) para 97.

54 Prosecutor v Duško Sikirica et al. (Judgement on Defence Motions to Acquit) ICTY-95-

8-T (3 September 2001) para 65.

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on the group as a whole’.

A targeted part of a group could be classed as ‘sub-

stantial’either because the perpetrators intended to harm a large majority of the

group in question, or the most representative members of the targeted commu-

nity (i.e. the elites).

Such ‘elites’include political and administrative leaders,

religious leaders, academics and intellectuals, business leaders and others –but

regardless of the actual number of victims, what counts is the broad intended

effect of the action as such, which is an indicator of the crime of genocide.

A corroborating argument of the genocidal intent can be the fate of the rest of

the group –if a group has its elites exterminated, and at the same time or in the

wake of that has a relatively large number of the members of the group killed or

subjected to other heinous acts (e.g. deported on a large scale or forced to ﬂee),

the cluster of violations must be considered in its entirety in order to interpret

the provisions of the Genocide Convention in a spirit consistent with its

purpose.

When it comes to terrorist acts, their most characteristic feature is usually the

lack of a distinctly deﬁned targeted group. The selection of victims is often

casual, and attacks are unfocused and may cover the civilian population en

masse, without ‘stigmatisation’of its particular members, which leads to

a tendency to deﬁne terrorism as a ‘blind crime’.

Obviously, terrorist attacks

may be targeted against individuals, representatives of the state (e.g. government

members, ofﬁcials, judges, law enforcement ofﬁcers) or other persons who are

considered by the terrorists as their opponents. However, most frequently

purely incidental persons are targeted, unrelated with any group within the

meaning of Article II of the Genocide Convention of 1948. Accordingly, acts of

terrorism are usually not focused on extermination of a speciﬁc group and take

the form of indiscriminate attacks.

However, taking into consideration the hatred-driven members of religious

terrorist groups against representatives of other religions, it might appear that

terrorist organisations that incorporate religious extremists could or should be

deemed to be targeting a religious group within the meaning of the Genocide

Convention. For example, organisations such as al-Qaeda or certain religious

sects could target speciﬁc religious groups, such as Christians or Buddhists.

Only here the question arises whether the real goal of any such terrorist attack is

to destroy in whole or in part a religious group, or rather to make some political

and propaganda gains. Actually, the global jihad (a common effort of Muslims)

identiﬁed with the above-mentioned al-Qaeda, which is not so much an organ-

isation but rather an ideology and a spiritual stance, ‘stigmatises’speciﬁc groups,

55 Bosnia and Herzegovina v. Serbia and Montenegro (n 37) para 198.

56 Jelisić(n 32) para 82.

57 Ibid.

58 Cf. Tomasz Aleksandrowicz, Terroryzm międzynarodowy [International Terrorism] (Wydaw-

nictwa Akademickie i Profesjonalne 2008) 21.

59 Cf. Arnold (n 20) 288.

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ordering their extermination in whole or in part. Jihad protagonists name three

enemies whose impact must be defeated in the ﬁrst instance, namely ‘crusaders’

(Western Christian societies and Russia), ‘Jews’(the State of Israel) and ‘minions’

(Muslim governments or dictatorships serving or supporting non-Muslims).

The only way to defend against these enemies and their never-ending attacks

is jihad (a common effort of Muslims) that has to include, inter alia, means of

terrorist activity.

But are they actually trying to eliminate these groups in

whole or in part?

The explanation of who is the enemy of Islam and against whom all attacks

must be directed can be found in the fatwas issued by al-Qaeda leaders.

One

of the most important such fatwas –calling for ‘holy war against Jews and cru-

saders’–was issued in February 1998 by Osama bin Laden and a few other of

the most prominent representatives of various radical Islamic groups.

Verses

from the Quran are quoted therein, as well as statement by prophets and

Imams. According to the authors of the fatwa the entire Muslim community is

obliged to ﬁght against and defend itself in accordance with the objectives of

jihad in the face of ‘a crusader-Zionist alliance’.

This ﬁght must be in accord-

ance with the words of Allah: ‘ﬁght the pagans all together as they ﬁght you all

together’

and ‘ﬁght them until there is no more tumult or oppression, and

there prevails justice and faith in God.’

Nevertheless, it does not seem that an opponent as deﬁned above could rea-

sonably be classiﬁed into a religious group based on the Genocide Convention.

In Islam, unbelievers are divided into ‘People of the Book’(i.e. Jews and Chris-

tians) and idolaters (polytheists and inﬁdels).

The term ‘unbelievers’is not suf-

ﬁciently precise though, and comprises all non-Muslims. Furthermore, in a fatwa

issued in 1998 there is a mention of ‘minions’, which can include Muslims.

60 Wilhelm Dietl et al., Terroryzm [Terrorism] (PWN 2009) 122.

61 Ibid., 123.

62 In general, a ‘fatwa’is a written legal opinion issued by a qualiﬁed Muslim jurist or theolo-

gian, or a person of unquestionable authority in the ﬁeld of Muslim law or theology. It con-

tains reasoning or an indication how to solve a certain problem in compliance with Islamic

law. A fatwa is not legally binding: the one who asks for it does not have to follow its recom-

mendations; and the importance of the opinion may depend on the prestige of its author.

However, in case of al-Qaeda, its members and advocates consider fatwas issued by its leaders

as binding (see Agata Marek, Islam. Informator dla organizacji pozarządowych [Islam. Guide

for Non-Governmental Organisations] (Vox Humana 2005) 48).

63 ‘Text of Fatwah Urging Jihad Against Americans’(23 February 1998) www.mideastweb.

org/osamabinladen1.htm [accessed 7 January 2019].

64 ‘The ruling to kill the Americans and their allies –civilians and military –is an individual duty

for every Muslim who can do it in any country in which it is possible to do so, in order to

liberate the al-Aqsa Mosque and the holy mosque from their grip, and in order for their

armies to move out of all the lands of Islam, defeated and unable to threaten any Muslim’

(Text of Fatwah (n 63)).

65 Ibid.

66 Ibid.

67 Marek (n 62) 51.

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Similarly, the term ‘crusaders’may not be regarded as sufﬁciently precise. While

in this case religion may seem to be a stigmatising element, it can also include

the accepted system of values or the views held by populations. Terrorist attacks

conducted by al-Qaeda can therefore be labelled as indiscriminate, and their pri-

mary goal is certainly not to destroy, in whole or in part, religious groups as

such.

Again, it does not seem plausible that the extermination of a speciﬁc pro-

tected group (including religious ones) within the meaning of the Genocide

Convention would be a leitmotif in the activities of fundamentalist-religious

groups or the so-called ‘doomsday sects’which are not Islamic. Undoubtedly,

the most unsettling characteristic of their activity is the endowment of terrorist

acts with a sacramental or transcendental nature, and the elevation of terrorism

to a spiritual or eschatological level. In their leaders’eyes, the world is black and

white, and each day is a relentless battle between the forces of good, which they

represent, and the forces of evil, as represented by the rest of the world.

addition, they are convinced that they are a persecuted and oppressed group of

‘chosen ones’who will only be winners in the ‘ultimate ﬁght’.

The same

approach seems to be adopted by various Christian ultra-right movements oper-

ating in the USA (inter alia, the Michigan Militia, Aryan Nations, Christian

Identity).

Members of the aforementioned groups are convinced that through

their activity they contribute to the ultimate battle against evil forces, personiﬁed

by representatives of races other than white; by an omnipotent and sinister gov-

ernment; and by international organisations that attempt to introduce

a malevolent ‘new world order’.

Adeﬁnite and express division into ‘believers’and ‘unbelievers’is reﬂected in

various doomsday cults, among which one can include the Japanese sect Aum

Shinrikyo (Supreme Truth), notorious for the deadly Tokyo subway sarin attack

it carried out in 1995. It was supposed to be an ‘ultimate battle’–the begin-

ning of Armageddon –thus the attack was not directed against a speciﬁc group

(victims included random subway passengers). What is crucial is that, unlike the

majority of traditional cults, the Supreme Truth also proclaimed a ﬁght against

the state and its authorities; in 1995 the chief of the National Police Agency

was shot to death by its members, and the organisation was also responsible for

preparing ‘death lists’including names of the most prominent Japanese

68 Marcin Marcinko, ‘The Contemporary Face of International Terrorism’(2005) 22 ‘Pro

Memoria’–Information Bulletin of the Auschwitz-Birkenau State Museum 67, 69.

69 Dietl (n 60) 126.

70 Their activity was once limited to acts of violence with racist or religious motivations, directed

against individuals, and they used force against the state only when the authorities interfered

in the political or religious activity of the cells of a given terrorist grouping. At present, many

groups deriving from this trend are manifesting a clear hostility to the government. In the

opinion of the followers of these groups, the government is entangled in a wide-ranging con-

spiracy that threatens the model of life adopted by white Christians (Marcinko (n 68) 69).

71 Ibid.

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politicians.

Despite its religious character and devastating plans, Supreme

Truth was not focused on the destruction of any religious group as such, but

rather on the destruction of all persons outside itself.

Thus, it is difﬁcult to assess that in their assumed concept of combat –i.e. ‘us

versus the rest of the world’–the aforementioned fundamentalist-religious organ-

isations are stigmatising any speciﬁc protected groups as categorised in the deﬁn-

ition of genocide. It is true that these organisations are striving to inﬂict as much

damage as possible, as well as the maximum number of civilian casualties, but

their opponents are understood in too-general terms, without adopting any of

the speciﬁc criteria used for their choice of victims of criminal acts; for example, in

bomb attacks in public places. For religious extremists, people from beyond their

group are less valuable. They intentionally describe them in extremely degrading

and dehumanised terms, referring to them as inﬁdels or children of Satan. What is

more, the foregoing division of the world propagated by the organisations dis-

cussed herein, with the ‘good ones’being the members of the given organisation

and ‘evil ones’all the others who do not belong to such organisation, resembles

the ‘negative approach’connected with interpretation of elements of the crime of

genocide, which consists of identifying individuals as not being part of the group

to which the perpetrators of the crime consider that they themselves belong, and

which to them displays speciﬁc national, ethnical, racial or religious characteristics.

Thereby, all individuals thus rejected could, by their exclusion, be considered to

be a distinct group. It is worth recalling though that with regard to genocide,

international criminal tribunals and the ICJ have rejected the ‘negative approach’

as inconsistent with the Genocide Convention. Therefore, acts of terrorism com-

mitted by the aforementioned groups would not constitute the crime of genocide

because they are indiscriminate and not aimed at speciﬁc protected groups in

accordance with the Convention.

The genocidal intent of the crime of genocide and the special

intent underlying acts of terrorism

As has been mentioned above, in the case of genocide it is not sufﬁcient to simply

identify a protected group without having the so-called ‘genocidal intent’, i.e. the

intention to exterminate the protected group in whole or in part. This is the most

characteristic trait of genocide, which highlights its peculiarity. This intent

amounts to the dolus specialis of the crime of genocide; therefore, it excludes

other categories of mental elements: recklessness (or dolus eventualis) and gross

negligence.

Importantly, it is this speciﬁc intent that distinguishes the crime of

genocide from other international crimes and offences.

Even if we assume that

72 Dietl (n 60) 242.

73 Cassese (n 18) 137.

74 See Akayesu (n 34) para 498; Kayishema and Ruzindana (n 53) para 91; Sikirica et al. (n 54)

para 84.

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some terrorist acts can be deemed to be targeted at a protected group (e.g.

a religious one), the lack of any such genocidal intent on the part of the terrorists

would render their actions incapable of being classiﬁed as the crime of genocide.

The genocidal intent must be separate from the general intent to commit one

of the prohibited acts enumerated in Article II of the Genocide Convention.

This speciﬁc intent requires that the perpetrator, by virtue of carrying out one

of the above-mentioned prohibited acts, seeks to achieve the destruction, in

whole or in part, of a national, ethnical, racial or religious group, as such.

Fur-

thermore, it is not sufﬁcient that the perpetrator simply knew that the under-

lying crime might inevitably or likely result in the destruction of the group –

this destruction must be the aim of the underlying crime.

For the crime of genocide to occur, the perpetrator must be aware of this

crime prior to the commission of the genocidal acts. However, the individual

acts themselves do not require premeditation –the only consideration is that

the act should be done in furtherance of the genocidal intent.

As David Ner-

sessian rightly noted, ‘[t]his formulation aligns best with the structure of the

Convention [of 1948], which penalizes acts committed with a certain mental

state, rather than successful results from that conduct’.

It should be empha-

sised, however, that the dolus specialis of the crime of genocide cannot be identi-

ﬁed with the motivation of the perpetrator:

‘the intent to destroy the group as

such’should be thus distinguished from the motive, i.e. the incentive, which

does not have to be hatred for a given group. The motive may be political, eco-

nomic, racial or any other, and it may be related to prejudices, revenge or striv-

ing to obtain control over speciﬁc resources or territory.

‘The personal motive

of the perpetrator of the crime of genocide may be, for example, to obtain per-

sonal economic beneﬁts, or political advantage or some form of power’,

and

even to spread terror. It is important to note, however, that the existence of

a personal motive does not preclude the perpetrator from also having the spe-

ciﬁc intent to commit genocide.

The motives of the perpetrators of genocide

that prompted them to commit this crime are therefore irrelevant.

75 Prosecutor v Goran Jelisić(Appeals Chamber Judgement) ICTY-95-10-A (5 July 2001) para

46. See also Bosnia and Herzegovina v Serbia and Montenegro (n 37) para 187.

76 Blagojevićand Jokić(n 32) para 656. As the ICTY explained: ‘Genocidal intent may ( …)be

manifest in two forms. It may consist of desiring the extermination of a very large number of

the members of the group, in which case it would constitute an intention to destroy a group

en masse. However, it may also consist of the desired destruction of a more limited number

of persons selected for the impact that their disappearance would have upon the survival of

the group as such. This would then constitute an intention to destroy the group “select-

ively”.’(Jelisić(n 32) para 82).

77 Kayishema and Ruzindana (n 53) para 91. See also Akayesu (n 34) para 501.

78 Nersessian (n 39) 46.

79 Jelisić(Appelas Chamber Judgement) (n 72) para 49.

80 Matyasik and Domagała (n 30) 38.

81 Jelisić(AC Judgement) (n 75) para 49.

82 Ibid.

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However, the motive of the perpetrator may serve as further evidence of

genocidal intent.

In cases of genocide, courts and tribunals extremely rarely

deal with direct evidence of a genocidal intent; therefore, it is difﬁcult to show

that the perpetrator was guided by this intent, unless he confesses to aiming to

commit genocide. In most cases the genocidal intent must be inferred from

a certain number of presumptions of fact.

The factors taken into consideration

by the courts and tribunals are, for example, the number of victims, the previous

methods and pattern of conduct of the perpetrator, and his statements and

deeds.

A general political doctrine that gave rise to the crime of genocide is

relevant, as well as the repetition of destructive and discriminatory acts; the scale

and nature of the atrocities committed; the discriminatory targeting of the mem-

bers or property of one group to the exclusion of others; methodical or system-

atic planning of killings; the weapons employed; and the extent of injury

inﬂicted.

Acts of so-called ‘cultural genocide’and other forms of conduct that

violate (either in reality or only in the eyes of the perpetrators) the very founda-

tion of the group or its roots are also relevant.

Ultimately, all these factors

and facts can be of great importance in the evidentiary proceedings, and

although they do not constitute legal elements of genocide per se, they can help

in proving (or conﬁrming) that in a given case there was indeed a genocidal

intent.

In the case of terrorism, determination of the motive of operation of terrorists

allows us to distinguish terrorism as a manifestation of ‘collective’criminality

from other offences (such as murders, kidnapping, bomb attacks), which tend to

be regarded as ‘individual’criminal acts. Acts of terrorism are usually committed

by groups or organisations, or single perpetrators acting on their behalf or

otherwise associated with them. Surely an act of terrorism, e.g. a bomb attack,

can also be committed by an individual who does not belong to any such organ-

isation or group. The act, however, would only be regarded as terrorist if indi-

viduals were directed by an ideology or a set of rules (e.g. religious), personally

identifying themselves with a group or organisation whose objective is to

commit the aforesaid acts. Thus in such a case the criminal activity is not under-

taken for personal reasons (e.g. for revenge, for proﬁt, holding a grudge, or

because of hatred); it may be based on political, ideological or religious motives,

or something similar. Motive is, therefore, a factor that transforms the criminal

act undertaken by an individual into an act of terrorism.

83 Nersessian (n 39) 35.

84 Akayesu (n 34) para 523.

85 Cf. Jelisić(n 32) para 73.

86 Nersessian (n 39) 34–35. See also Jelisić(n 32) para 73; Kayishema and Ruzindana (n 53)

paras 94, 531, 533–536, 542; Musema (n 47) paras 928, 930–931.

87 Nersessian (n 39) 35. See also Krstić(n 32) paras 480, 595–597.

88 Cf. Cassese (n 18) 142.

89 Ibid., 167–168.

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In order to effectively prosecute and punish perpetrators of terrorist acts, the

motivation underlying their acts must not be treated as a justiﬁcation of their

conduct or circumstances that exclude unlawfulness; if acts of terrorism are to

be regarded as crimes, the assessment criteria applied to weigh any such acts

ought to include criminal intent to commit a crime, not the underlying reasons

behind the crime. As stated above, in international law attention is seldom paid

to the political nature of terrorism; what is rather underlined is that all acts of

terrorism ought to be considered as criminal offences regardless of by whom,

where and for what reasons they were committed. This implies that under no

circumstances should terrorism be justiﬁed by political, philosophical, ideo-

logical, racial, ethnic, religious or similar reasons. The political, ideological or

any other goal must never be used to rationalise means based on terror and

intimidation, and consequently it must not be assumed that condemnation of

acts of terrorism would depend on subjective criteria such as views, the origin of

a perpetrator or the motives that lie at the heart of action. For example,

‘although most people acknowledge the legitimacy of the Palestinians’claims to

self-determination, they do not automatically consider the use of suicide bomb-

ings as legitimate’.

However, while the mere motive to undertake a terrorist activity is not sufﬁ-

cient to recognise a prohibited act as a terrorist act, the speciﬁcity of a terrorist

offence means that in the case of terrorism it is impossible not to consider the

goal that terrorists intend to achieve, which in turn may result from the motives

underlying their criminal activity. In the above-mentioned deﬁnitions of terror-

ism –including the deﬁnition formulated by the UN Security Council in Reso-

lution 1566 (2004)

–acts of terrorism are:

criminal acts, including against civilians, committed with the intent to cause

death or serious bodily injury, or taking of hostages, with the purpose to

provoke a state of terror in the general public or in a group of persons or

particular persons, intimidate a population or compel a government or an

international organization to do or to abstain from doing any act.

Thus, the purpose of terrorist acts may be ‘either spreading terror among the

population or compelling a government or an international organization to per-

form or abstain from performing an act’.

A third possible objective might be

to destabilise or destroy the political, constitutional, economic or social struc-

tures of a given state

90 Arnold (n 20) 4–5.

91 UNSC Res 1566 (8 October 2004) UN Doc S/RES/1566 (2004).

92 Ibid., para 3.

93 Cassese (n 18) 166.

94 Ibid. Cf. Sebastian Wojciechowski and Adrian K. Siadkowski, Understanding Contemporary

Terrorism and Counterterrorism (Academy of Business 2014) 33.

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However, given the content of the various deﬁnitions of terrorism (including

the deﬁnition of the Security Council), it seems that the overriding objective of

terrorists is always to force a public (or private) institution to behave in

a particular way. According to Antonio Cassese:

[t]he spreading of deep fear or anxiety is only a means for compelling

a government or another institution to do (or not to do) something; it is

never an end in itself. Also, the destabilization of the political structure of

a state is a means of making the incumbent government take a certain

course of action.

In some instances, terrorists do not clearly formulate their goal(s), neither

before nor after committing a terrorist act. However, it is difﬁcult to assume

that murders, kidnappings or bombings are committed for the very fact of com-

mitting them, because in fact they are aimed at inducing a public or private

entity to do or refrain from doing something.

Ultimately, every form of terrorism ‘always pursues one primary and essential

purpose, that of coercing a public authority (…) or a transnational private

organization (…) to take (or refrain from taking) a speciﬁc action or a certain

policy’.

This purpose can be achieved by terrorists in two ways: ﬁrst, by

spreading fear or anxiety among civilians (e.g. by kidnapping or hijacking civil-

ians, or by bombings in public places or in public transport) –the aim of terror-

ists is to induce the intimidated population to exert pressure on the authorities

and force them to undertake a certain behaviour;

second, by engaging in crim-

inal activity directed against public institutions (these could be bomb attacks or

threats of such attacks against government buildings, military headquarters, the

premises of parliament, embassy buildings, etc.) or against political leaders or

leading representatives of public authorities or private entities (e.g. the head of

state, a member of the government, chairman of a political party, ambassador,

general manager of a bank, president of a commercial corporation), thus exert-

ing pressure directly on public or private entities.

From the legal standpoint, an act of terrorism understood as an offence con-

sists of two subjective elements (mens rea)–mental, i.e. the ‘general’element

of an individual’s intention to commit the offence, which is a necessary element

of many offences, including kidnapping, hijacking, bomb attacks, etc. (dolus gen-

eralis); and a ‘special’intent which requires that a public or private entity be

forced to take or refrain from taking a speciﬁc action (dolus specialis).

100

Thus

95 Cassese (n 18) 167.

96 Ibid.

97 Ibid.

98 Cf. Wojciechowski and Siadkowski (n 94) 36.

99 Cassese (n 18) 167.

100 Ibid., 168.

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an act of terrorism is characterised by a unique special intent different from

genocidal intent, and it is this very difference that precludes the possibility to

classify acts of terrorism as acts that constitute the crime of genocide. If, for

example, the crime of genocide involves extermination of members of a speciﬁc

group, it requires both a direct intent to commit murder (excluding thereby

recklessness and negligence) as well as an intent to commit genocide, while acts

of terrorism, which may incidentally contribute to the execution of a genocidal

plan, are not perceived as genocide unless special genocidal intent was present

on the side of a perpetrator. In addition, a speciﬁc feature of terrorism is an inci-

dental selection of victims, who in fact are the means to achieve a goal other

than destruction or annihilation, in whole or in part, of a national, ethnic, racial

or religious group.

101

As interestingly pointed out by Brian M. Jenkins, terror-

ism is theatre, with the directors being terrorists, the audience the society or

government, and victims as the actors; therefore, the victims’role is instrumen-

tal (usually without any links to terrorist goals) and is staged to produce an

adequate response from the audience. In other words, in contrast to the crime

of genocide, terrorism is intended for those who watch, not for those who have

become victims.

102

Conclusions

In light of the above legal analysis, it seems that the only element linking the

crime of genocide and acts of terrorism is their criminal nature and the fact that

they cannot ﬁnd any justiﬁcation, regardless of the motives and purposes of

their perpetrators. However, the legal classiﬁcation of both criminal phenomena

is not so similar. Genocide is an international crime and as such is deﬁned in

international treaty law and in the statutes of international courts and tribunals.

In the case of terrorism, there is no universal and commonly accepted deﬁnition

of this phenomenon, as so far it has not been decided to recognise acts of ter-

rorism as international crimes, although they are undoubtedly treated as serious

offences of an international nature.

The lack of a uniform legal deﬁnition of terrorism means that terrorist acts are

sometimes treated as certain forms of war crimes or crimes against humanity if the

acts meet the legal requirements of these crimes. However the speciﬁcelementsof

the crime of genocide, and in particular the so-called ‘genocidal intent’, mean that

acts of terrorism cannot be ‘matched’to the deﬁnition of the crime of genocide.

Eventhepresenceofanelementthatatﬁrst glance could seem to be a link

between terrorism and genocide, namely ‘religion’, does not change this. In light

of Article II of the Genocide Convention, one of the protected groups is a religious

101 Cf. Arnold (n 20) 300.

102 See Brian M. Jenkins, ‘International Terrorism: A New Mode of Conﬂict’in David Carlton

and Carlo Schaerf (eds), International Terrorism and World Security (Croom Helm

1976) 16.

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group, while one of the forms of terrorism is religiously motivated terrorism, which

is thus directed against the followers of other religions. In the light of the deﬁnition

of the crime of genocide, this religious group should be deﬁned positively, i.e. the

characteristics of this group which distinguish it from other groups should be taken

into account, and perpetrators attacking members of this group may be of any reli-

gion (they may even be followers of the same religion). On the other hand, in the

case of terrorist groups, religion is a feature distinguishing the members of many of

these groups from the rest of the world –religious terrorists target all who do not

share their faith and religious values, and therefore the attacks of these terrorist

groups are indiscriminate, without stigmatising speciﬁc religious groups.

In addition, in acts of terrorism one cannot ﬁnd the key element constituting the

essenceofthecrimeofgenocide–a genocidal intent. The perpetrators of genocide

act with the explicit intent of destroying, in whole or in part, a national, ethnical,

racial or religious group, as such. The destruction of a given group is therefore the

driving force behind the perpetrators of genocide, although their motives may be

varied. However, in the case of terrorism, victims caused by terrorist attacks are not

anendinitself–these victims are treated instrumentally by terrorists, because the

main intention of terrorist acts –regardless of their form –is usually to compel

a government, an international organisation or a private entity to perform or abstain

from performing a speciﬁc action. Obviously, terrorist groups whose members are

considered religious extremists (e.g. ISIS) may commit the crime of genocide

against a speciﬁc religious group (e.g. the Yazidis of Sinjar), but this proves that

every case of violence directed at a speciﬁc community should be assessed from the

perspective of legal regulations, and it is only then that one can deﬁnitively conﬁrm

whether a given case constitutes the crime of genocide or an act of terrorism.

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10 Blurring the distinction between

ethnic cleansing and genocide

Tamas Vince Adany

Introduction

Compared to the long history of international law, which encompasses several

millennia, the direct responsibility of individuals for international crimes is

a relatively new idea within this normative system. It is therefore hardly surpris-

ing that the respective crimes also have a far shorter history, and instead of mil-

lennia of development, the legal concepts have evolved only in the past several

decades. Thus certain differences between these new legal terms and their social

adoption and recognition can also be expected. Nevertheless, the discussion on

the proper use of the phrases “genocide”and “ethnic cleansing”highlight

a startling divide between the necessarily strict interpretation of criminal law

terms in the legal discourse, and the phrases used to describe similarly heinous

atrocities in non-legal social sciences and in the general public discourse. For

criminal law procedures, the term “ethnic cleansing”is hardly adopted at all.

For the general public and non-legal academic discourse, “genocide”and

“ethnic cleansing”sometimes even seem interchangeable,

while some scholars

draw attention to the limitations of both terms.

The ﬁrst difﬁculty in resolving this divide lies in the different sources for

the two respective terms, which leads to an inevitable methodological dis-

agreement. Genocide, simpliﬁed at this point as the destruction of a speciﬁc

1 The author wishes to express his gratitude to the organizers and all the participants of the

December 2018 Conference on Genocide –Marking 70 Years of the Genocide Convention in

Kraków and also to Erkan Akdogan for their valuable comments on some ideas expressed in

this chapter. Any errors in the arguments are those of the author alone.

2 Micol Sirkin, “Expanding the Crime of Genocide to Include Ethnic Cleansing: A Return to

Established Principles in Light of Contemporary Interpretations Comment”Seattle University

Law Review 489. Jobair Alam, “The Rohingya of Myanmar: Theoretical Signiﬁcance of the

Minority Status”(2018) 19 Asian Ethnicity 180. For other examples, see Robert M. Hayden,

“Schindler’s Fate: Genocide, Ethnic Cleansing, and Population Transfers”(1996) 55 Slavic

Review 727, p. 731 et seq.

3 Antonio Ferrara, “Beyond Genocide and Ethnic Cleansing: Demographic Surgery as a New

Way to Understand Mass Violence”(2015) 17 Journal of Genocide Research 1.

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group of people, is a phenomenon that was present throughout human his-

tory, while the term itself was coined by Raphael Lemkin only in the middle

of the twentieth century. The concept of genocide as we know it today was

ﬁnalised by an international treaty-making procedure and a resulting conven-

tion in 1948. The legal deﬁnition was implemented in national legal

systems,

and it became a legal cornerstone which solidiﬁed a legal method

for its interpretation. For this legal interpretation it is less relevant that

Lemkin brieﬂy considered using ethnos (nation)

instead of gens,

since this

“ethnocide”never became a legally-deﬁned term.

Nevertheless, some ﬁfty

years later violent practices erupted to create ethnically homogeneous areas,

and the resulting atrocities against ethnic groups led to the appearance of

a new phrase in the popular language of international politics: “ethnic cleans-

ing.”It is much harder to pinpoint the exact origin of this phrase,

partly

because, unlike genocide, this label was ﬁrst used by the perpetrators

themselves.

Generally it refers to a set of practices meant to create an eth-

nically homogeneous territory, usually by forceful means. The diversity of the

practices employed makes it extremely hard to deﬁne concisely. As an early

commentator noted:

At one end [ethnic cleansing] is virtually indistinguishable from forced

emigration and population exchange while at the other it merges with

deportation and genocide. At the most general level, however, ethnic

cleansing can be understood as the expulsion of a population from

a given territory.

4 See, for example, Tamás Hoffmann’s chapter in the present volume.

5 See Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation –Analysis of Govern-

ment –Proposals for Redress (Carnegie Endowment for International Peace 1944), p. 80

note 1.

6 Tanya Elder, “What You See before Your Eyes: Documenting Raphael Lemkin’s Life by

Exploring His Archival Papers, 1900–1959”(2005) 7 Journal of Genocide Research 469,

note 3. See also Rony Blum and others, “‘Ethnic Cleansing’Bleaches the Atrocities of Geno-

cide”(2008) 18 European Journal of Public Health 204; Elihu Richter and Gregory Stanton,

“Response to Hayden: Comment on ‘Ethnic Cleansing’and ‘Genocide’” (2008) 18 Euro-

pean Journal of Public Health 210.

7 Although it still appears in academic discourse; see Brian Glyn Williams, “Hidden Ethnocide

in the Soviet Muslim Borderlands: The Ethnic Cleansing of the Crimean Tatars”(2002) 4

Journal of Genocide Research 357.

8 Interim Report S/35374. See the speech of UN Special Rappoerteur Tadeusz Mazowiecki at

the 50th session of the Commission on Human Rights, Geneva, 28 February 1994. Cited in

Drazen Petrovic, “Ethnic Cleansing –An Attempt at Methodology”(1994) 5 European

Journal of International Law 342, p. 349.

9 Carrie Booth Walling, “The History and Politics of Ethnic Cleansing”(2000) 4 The Inter-

national Journal of Human Rights, p. 48; Petrovic, op.cit. p. 343; William A. Schabas, Geno-

cide in International Law: The Crime of Crimes (Cambridge University Press 2000), p. 190.

10 Schabas, p. 192.

11 Andrew Bell-Fialkoff, “A Brief History of Ethnic Cleansing”(1993) 72 Foreign Affairs 110.

Blurring the distinction 213

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Notably, unlike “genocide”“ethnic cleansing”is not a legal term,

and as of

late 2019 it still lacks a deﬁnition in a legally binding international instrument.

Several United Nations (UN) bodies have offered working deﬁnitions,

but

none of these were embodied in a binding source of international law. Formally,

resolutions of the General Assembly are mere recommendations for states, and

thus fail to pass the threshold of nullum crimen sine lege, a basic tenet of every

fair criminal trial.

This Latin maxim translates into the modern-day prohibition

of punishment for conduct that was not rendered an offence punishable by law

at the time of its commission.

The applicable law can be part of either

a national or an international legal instrument, but must be enacted before the

commission of the act. As a human rights norm, this principle allows for no

legally recognised exceptions, so the lack of a legally binding deﬁnition for an

offence effectively precludes any criminal law procedure with respect thereto.

Consequently, in a fair trial, a classiﬁcation of a practice as ethnic cleansing

cannot in itself constitute the sufﬁcient legal grounds to connect the facts of the

case to the appropriate legal sanctions. Whenever the factual background of

a case justiﬁes its categorisation as ethnic cleansing, a relevant criminal law cat-

egory must be identiﬁed that offers another, legally pertinent, ﬁtting description

of the same practice. These legal categories should not only address the individ-

ual criminal acts that altogether comprise ethnic cleansing, but they must also

cover the link connecting those acts into a single atrocity. Considering the grav-

ity of the offence of ethnic cleansing, the entirety of such practices can be duly

treated only at the level of international crimes, i.e. either as genocide or crimes

against humanity.

In terms of the present discussion, the most important differences between

the two crimes concern the mental elements of crimes against humanity (know-

ledge of a systematic or widespread attack on the civil population) and genocide

(the intent to destroy the group itself). This different intent is persistently cited

as the reason to conclude that ethnic cleansing is not genocide, but rather

a crime against humanity.

12 Schabas, p. 112; Lieberman.

13 Raphael Lemkin, “Les Actes Constituant Un Danger General (Interétatique) Consideres

Comme Delites Des Droit Des Gens –Rapport spécial présenté à la 5me Conférence pour

l’uniﬁcation du droit pénal à Madrid, 14-20 oct. 1933”(A. Pedone, 1933).

14 No punishment without law, ICTY (IT-98-33) Prosecutor v. Radislav KrstićTrial Chamber

Judgment, 2 August 2001 (hereinafter: KrstićTrial Judgment) para. 580.

15 See Universal Declaration of Human Rights Article 11(2); International Covenant of Civil

and Political Rights, Article 15;

16 Another option –if the ethnic cleansing happens within an armed conﬂict –may be war

crimes. Due to such a conditional application of this legal category no further examination is

offered in this chapter on its classiﬁcation as a war crime. Although ethnic cleansing com-

monly happens in an armed conﬂict, this should not be understood as a necessary element of

the criminal law categories encompassing ethnic cleansing.

17 For example, KrstićTrial Judgment, para. 494.

214 Tamas Vince Adany

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Destruction of a group, as an element of the concept of genocide, had been

already part of Raphael Lemkin’s 1933 original proposal at the Madrid

Conference.

His later publications also focused on extermination/annihilation

of a group.

However, he described the methods of destruction in a broader

sense than the ﬁnal legal text adopted by the states in the 1948 Genocide Con-

vention. For an assessment of ethnic cleansing as genocide it is of some import-

ance that under the 1944 “Axis rule,”Lemkin reasoned that deprivation of

one’s livelihood would endanger the survival of the group as such.

The destruction of the foundations of the economic existence of a national

group necessarily brings about a crippling of its development, even

a retrogression. The lowering of the standards of living creates difﬁculties in

fulﬁlling cultural-spiritual requirements. Furthermore, a daily ﬁght literally

for bread and for physical survival may handicap thinking in both general

and national terms.

After the war, when Lemkin worked as one of three UN experts on the draft

of the Genocide Convention, he still promoted his broader deﬁnition, but

theothertwoexpertstookamoreconservativestance.Duetofearsof

“reconstituting a former protection of minorities […] under cover of the

term genocide”they deliberately excluded not just most of the Lemkinian

concept of cultural genocide, but also the “forced expulsion from the

group’s homeland, an act known more recently known as ethnic

cleansing.”

What Lemkin described as “economic genocide”was trans-

formed into the genocidal conduct of “imposing life conditions calculated to

bring about the destruction of the group.”

Although some of Lemkin’s key ideas were turned down in the drafting pro-

cess, there was still a proposal during the state-level negotiations from the

Syrian government to insert a sixth criminal conduct to genocide, namely

“measures intended to oblige members of a group to abandon their homes in

order to escape the threat of subsequent ill-treatment.”

In supporting this

proposal, the representative from Yugoslavia added “genocide could be com-

mitted by forcing members of a group to abandon their homes.”

Aclear

18 Raphael Lemkin, “Les Actes Constituant Un Danger General (Interétatique) Consideres

Comme Delites Des Droit Des Gens”(1933).: “les actions exterminatrices dirigées contre les

collectivités ethniques, confessionnelles ou sociales quels qu’en soient les motifs (politiques,

religieux, etc.); tels p. ex. massacres, pogromes, actions entreprises on vue de ruiner l’exis-

tence économique des membres d’une collectivité etc.”

19 Raphael Lemkin, “Genocide”(1946) 15 American Scholar 227.

20 Lemkin, Axis Rule in Occupied Europe, p. 86.

21 Schabas, p. 178.

22 A/C.6/SR.82. p. 183.

23 Schabas, p. 184.

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majority of the representatives voted against this proposal, albeit for different

reasons. Most argued that it would give the concept of genocide “an indeﬁnite

scope”

; or that it would “go too far”without even a threat of genocide;

and some proposed that it should be sent to the Third Committee as it is, by

virtue of the displaced people, a social affair.

Consequently, the physical destruction of a protected group became the

predominant, but still not exclusive, method of committing genocide.

Nevertheless, the UN General Assembly (UNGA) rightly called the crime of

genocide the “denial of the right of existence of entire human groups.”

Why ethnic cleansing is different from genocide

When ethnic cleansing emerged as a burning issue in the 1990s, attempts

were made to comprehend it in a legal procedure through two established

criminal law concepts: crimes against humanity or genocide. In terms of sen-

tencing, the two crimes show no signiﬁcant differences.

The stigmatising

effect of genocide is arguably more profound,

which can also be relevant in

terms of the preventive function of criminal law.

Still, there are far less

judgments from international tribunals convicting persons for genocide than

those related to crimes against humanity. One signiﬁcant reason for this scar-

city of international genocide judgments is the colloquially recognised

restrictive nature of the legal deﬁnition of genocide.

This restrictive nature

again relates to the nullum crimen principle: a fair criminal trial cannot be

based on an extensive interpretation of the legally-prescribed elements of

acrime.

From a legal/technical perspective, this latter feature explains the debated

relationship between ethnic cleansing and genocide. Early in the discussion it

seemed that ethnic cleansing would be accepted within the concept of geno-

cide. A resolution of the UNGA from December 1992 declared that the

UNGA was gravely “concerned about […] the abhorrent policy of ‘ethnic

24 A/C.6/SR.82 Comment by Kaeckenbeek (Belgium) p. 184.

25 A/C.6/SR.82 Comment by Sundaram (India) p. 184.

26 A/C.6/SR.82 Comments by Fitzmaurice (UK) p. 185; Raafat (Egypt); Abdoh (Iran) p. 186.

27 UNGA Res. No. 96 (I).

28 The actual sentences seem factually to depend more on other factors. For more details, see

Mark B. Harmon and Fergal Gaynor, “Ordinary Sentences for Extraordinary Crimes”(2007)

5 Journal of International Criminal Justice 683, p. 690.

29 David L. Nersessian, “Comparative Approaches to Punishing Hate: The Intersection of

Genocide and Crimes against Humanity”(2007) 43 Stanford Journal of International Law

221, p. 262; Patricia M. Wald, “Genocide and Crimes against Humanity”(2007) 6 Washing-

ton University Global Studies Law Review, p. 629; Manashaw, p. 530.

30 Nersessian.

31 See, for example, Wald; Akhavan.

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cleansing’, which is a form of genocide.”

The use of this wording could

have been seen as settling the legal categorisation of ethnic cleansing if the

resolutions of the General Assembly were legally binding on states. How-

ever, even if without such legal force the political support for the resolution

can be traced from the voting records. The resolution was accepted without

any states opposing by casting a vote against it, but the number of absten-

tions were relatively large (57, compared to 102 in favour). Abstaining

countries included four permanent members of the UNSC;

all the found-

ing members of the EU; traditional human rights strongholds like Canada,

Finland, Japan, Norway, and Sweden; and major developing states like

India or Brazil, etc.

Still, a year later two other UNGA resolutions reiter-

ated the statement,

and this time both were accepted without vote; i.e.

unanimously.

This issue is also echoed in the academic discourse. Most authors today

would agree that some forms of ethnic cleansing may be tantamount to

genocide, or at least some of its elements.

For some scholars, it seems

obvious that ethnic cleansing, like genocide, results in the disappearance of

an ethnic group and the creation of an ethnically homogeneous territory;

therefore, it meets the requirements of genocide under the law.

Aresult,

however, is not an element of the crime of genocide; therefore, it is not sur-

prising that many other scholars propose an interpretation of genocide that

does not include ethnic cleansing. William Schabas argued in his seminal

book that

32 UNGA A/RES/47/121 p. 2.

33 In spite of its subsequent reluctance “to use the g-word”–for example, in the case of

Rwanda (see Samantha Power, “Bystanders to Genocide”in The Atlantic, September 2001) –

only the USA supported the resolution.

34 Voting records are available at https://digitallibrary.un.org/record/282898?ln=en

(November 2019).

35 A/RES/48/143.

36 Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan

Ahmad Al-Bashir (Pre-Trial Chamber I), No. ICC-02/05-01/09-3, See, for example, Lei-

bermann Maja Munivrana Vajda, “Ethnic Cleansing as Genocide –Assessing the Croatian

Genocide Case before the ICJ”International Criminal Law Review 147, p. 151 et seq.;

H. Zeynep Bulutgil, “Social Cleavages, Wartime Experience, and Ethnic Cleansing in

Europe”(2015) 52 Journal of Peace Research 577.

37 See, for example, Linnea D. Manashaw, “Genocide and Ethnic Cleansing: Why the Distinc-

tion –A Discussion in the Context of Atrocities Occurring in Sudan Comment”California

Western International Law Journal 303; Sirkin; Jennifer Jackson Preece, “Ethnic Cleansing as

an Instrument of Nation-State Creation: Changing State Practices and Evolving Legal

Norms”(1998) 20 Human Rights Quarterly 817, p. 836. Some authors argue it justiﬁes

a broad interpretation of the intent: Milena Sterio, “The Karadzic Genocide Conviction:

Inferences, Intent, and the Necessity to Redeﬁne Genocide”Emory International Law

Review 271, p. 295.

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it is incorrect to assert that ethnic cleansing is a form of genocide, or even

that in some cases, ethnic cleansing amounts to genocide. Both, of course,

may share the same goal, which is to eliminate the persecuted group from

a given area. While the material acts performed to commit the crimes may

often resemble each other, they have two quite different speciﬁc intents.

One is intended to displace a population, the other to destroy it. The issue

is one of intent and it is logically inconceivable that the two agendas

coexist.

International tribunals have generally followed this latter approach. Most judicial

panels have understood the two phrases as referring to two distinct practices,

since ethnic cleansing, understood as the forcible removal of an ethnic group

from its habitation, is not equal to the physical destruction of the same group,

and the genocidal intent typically also remains questionable.

Relying on the aforementioned UNGA resolutions, whenever the Inter-

national Court of Justice (ICJ) has been faced with a dispute over genocide in

a contentious procedure, the initiating state has made an express reference to

ethnic cleansing as a form of genocide. In its application Bosnia and Herzegov-

ina submitted to the Court “that in fact ‘ethnic cleansing’is really a euphemism

for acts of genocide within the meaning of the Genocide Convention.”

The

Serbian Counter-Memorial rebutted this assertion by admitting that “Ethnic

cleansing is a loathsome unlawful policy. But if the goal of that policy is to

repulse by force, including killings and torture, members of an ethnic or reli-

gious group from a certain territory, this excludes ‘the intent to destroy, in

38 Schabas.

39 European Court of Human Rights Jorgic v. Germany (Application no. 74,613/01) Judgment

12 July 2007, para. 45, citing the ICJ: “‘Neither the intent, as a matter of policy, to render an

area “ethnically homogeneous”, nor the operations that may be carried out to implement

such policy, can as such be designated as genocide: the intent that characterizes genocide is

“to destroy, in whole or in part”a particular group, and deportation or displacement of the

members of a group, even if effected by force, is not necessarily equivalent to destruction of

that group, nor is such destruction an automatic consequence of the displacement. This is not

to say that acts described as “ethnic cleansing”may never constitute genocide, if they are such

as to be characterized as, for example, “deliberately inﬂicting on the group conditions of life

calculated to bring about its physical destruction in whole or in part”, contrary to Article II,

paragraph (c), of the Convention, provided such action is carried out with the necessary spe-

ciﬁc intent (dolus specialis), that is to say with a view to the destruction of the group, as dis-

tinct from its removal from the region. As the ICTY has observed, while “there are obvious

similarities between a genocidal policy and the policy commonly known as ‘ethnic cleansing’

(Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 562), yet “[a] clear dis-

tinction must be drawn between physical destruction and mere dissolution of a group. The

expulsion of a group or part of a group does not in itself sufﬁce for genocide.”’”

40 Application Instituting Proceedings Filed in the Registry of the Court on 20 March 1993

Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(ICJ Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), hereinafter: Bosnian

Genocide Case) para. 20.

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whole or in part, a national, ethnical, racial or religious group, as such. Or, at

least, it does not imply the existence of such an intent.’”

Following the jurisprudence of the International Criminal Tribunal for the

Former Yugoslavia (ICTY),

the judgment of the ICJ maintained that physical

destruction of the group and its “mere dissolution”are two distinct acts: the

former is genocide, the latter is ethnic cleansing. More importantly, the Court

seemed to imply that there is an inextricable difference between the required

genocidal intent and the purpose of ethnic cleansing. Based upon the different

intent of the perpetrators, the relevant paragraph of the judgment declares that

neither “the intent […] to render an area ‘ethnically homogeneous’, nor the

operations that may be carried out to implement such policy, can as such be

designated as genocide.”Nonetheless, an important ﬁnding of the Court clari-

ﬁes that dogmatically it is not impossible that an act of ethnic cleansing may be

tantamount to genocide: “This is not to say that acts described as ‘ethnic cleans-

ing’may never constitute genocide”

–in this case the relevant genocidal act

would most likely be “deliberately inﬂicting on the group conditions of life cal-

culated to bring about its physical destruction in whole or in part.”The fact

that the Court also found that ethnic cleansing can be a sign of genocidal intent

could lead to certain interpretation discrepancies: ethnic cleansing can be an

actus reus of genocide or it can sometimes be proof of the genocidal intent. In

his dissenting opinion, Judge Al-Khasawneh argues that the “jurisprudence of

the international criminal tribunals on this point is less amenable to artiﬁcial dis-

tinctions between the intent relevant to genocide and that relevant to ethnic

cleansing than the Court.”

The present author agrees with this dissent –i.e.

that the harsh distinction between destruction and dissolution of the group is

indeed artiﬁcial, or even arbitrary, while an important statement accepted by the

ICJ majority mitigates the confusion

about the role ethnic cleansing plays in

genocide litigation. This laconic line states that “in the context of the Conven-

tion, the term ‘ethnic cleansing’has no legal signiﬁcance of its own.”

There-

fore in this judgment the ICJ based its arguments on an understanding that

ethnic cleansing is a factual description and not a legal category. Consequently,

the Court did not exclude ethnic cleansing from forming a part of genocide,

but understandably refused to differ from the conventional deﬁnition of the

crime of crimes. The conclusion should be that ethnic cleansing may be suitable

41 Serbian Counter-Memorial (Bosnian Genocide Case) p. 7 para. 1.1.3.5.

42 For more details, see below. The references in the ICJ Judgment are: Krstić, IT-98-33-T,

Trial Chamber Judgment, 2 August 2001, para. 562; Stakić, IT-97-24-T, Trial Chamber

Judgment, 31 July 2003, para. 519.

43 ICJ Bosnian Genocide Judgment of 26 February 2007, pp. 122–123 para. 190.

44 He adds, in line with the KrstićJudgment, that “ethnic cleansing may be relied on as evidence

of the mens rea of genocide.”

45 As Judge ad hoc Mahiou formulated it in his dissent: “there gradually ceases to be a frontier

with genocide itself; it is at once the warning signal, the means and the purpose.”

46 ICJ Bosnian Genocide Judgment of 26 February 2007, p. 123 para. 190 (emphasis added).

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to constitute any or all elements of genocide, but such a ﬁnding is deﬁnitely not

automatic.

While the intention of the Court could have been to avoid creating a place in

international law for the notion of ethnic cleansing, the above-cited paragraph

of the judgment was heavily relied on by both parties in a later dispute between

Croatia and Serbia. Still, the Court found no reason to depart from its previous

position and decided to focus on the circumstances of the forced displacements.

If the circumstances supported that they had been intentionally calculated to

bring about the physical destruction of the group, then that particular ethnic

cleansing would have been genocide. The ICJ found that this was not the case,

and again the intent seemed more important for its ﬁnding than the physical act

of violence, despite the fact that both the ICJ and the ICTY found that indis-

criminate shelling

of civilian areas did actually take place. While artillery ﬁre

on civilian targets seems generally suitable for achieving the physical destruction

of a signiﬁcant part of the group, the majority of the ICJ ruled that the shelling

was used only to expel a substantial part of the population,

without the actual

intent of placing them in conditions to bring about their physical destruction.

While a part of the target group was indeed destroyed, the Court this time

focused on the impact of the actus reus on the entirety of the protected group.

Based on the above interpretation, it seems that international law today

argues that ethnic cleansing is not genocide

because the victim population and

members thereof have a bitter choice: “move or die”;

while in cases of geno-

cide the victims typically do not have this choice. In the following section, this

chapter looks for the proper label for an atrocity when such a choice prima facie

exists, albeit limited to options which all lead to an inevitable, but not immi-

nent, destruction of a group in the foreseeable future. The hypothesis that such

an overlap

exists between genocide and ethnic cleansing is based on the

assumption that survival of the members of a group does not equate to the sur-

vival of the group itself.

47 ICJ Application of the Convention on the Prevention and Punishment of the Crime of Geno-

cide (Croatia v. Serbia) (hereinafter: ICJ Croatian Genocide Case) Judgment of 3 Febru-

ary 2015 paras. 466 and 479–480; for more details, see also ICTY (IT-06-90) The Prosecutor

v. Ante Gotovina et al. Appeal Judgment of 16 November 2012 para. 25.

48 ICJ Croatian Genocide Judgment of 3 February 2015 para. 466.

49 Ibid., para. 479–480.

50 In addition to the ICJ, the ECHR also reached similar conclusions in Jorgic v. Germany §45.

51 Andrew Bell-Fialkoff, “A Brief History of Ethnic Cleansing”(1993) 72 Foreign Affairs,

p. 110. William A. Schabas, “‘Ethnic Cleansing’and Genocide: Similarities and Distinctions”

(2003) 3 European Yearbook of Minority Issues Online 109, p. 118. Note also the ﬁnding

that “despite the attempts by the VRS to make it look like a voluntary movement, the Bosnian

Muslims of Srebrenica were not exercising a genuine choice to go, but reacted reﬂexively to

a certainty that their survival depended on their ﬂight.”KrstićTrial Judgment, para. 530

(emphasis added).

52 Which the ICJ Judgment does not preclude. See supra, note 43.

53 Lemkin, Axis Rule, p. 79.

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Ethnic cleansing between genocide and crimes against humanity:

the practice of international criminal tribunals

As stated above, the conceptual differences between the legal notions of genocide

and crimes against humanity are well established, both in the case law of inter-

national tribunals as well as in the supporting literature.

Thecoredifferenceisthe

special genocidal intent;

i.e. that the purpose of the perpetrator is to destroy the

protected group.

It is essential to note again that it is this intent, and not the

achieved result, that is a fundamental element of the crime of genocide.

While

certain mental elements are also required to ﬁnd crimes against humanity, the most

important distinguishing factor in those crimes much rather lies within the system-

atic or widespread nature of the offence.

The purpose of the perpetrators of

crimes against humanity is not necessarily an essential part of the legally required

elements of those crimes,

even if the objectives of an ethnic cleanser are usually

also identiﬁable. Drazen Petrovic, one of the ﬁrst authors on a methodological

approach toward ethnic cleansing, discussed the goals of such practice on both the

local and global levels. He argues that the goals are (locally) to terrorise the target

group in order to obtain control of an area, and (globally) to irreversibly change

the demographic structure of an area by the creation of ethnically homogeneous

regions.

He also claims that a third goal can be the extermination of certain

groups of people from a particular territory.

Since the perpetrator does not intend to cause the brutal and imminent

destruction of the victim group, but is satisﬁed with the brutal and imminent

removal of the group from a given territory, the above-discussed mental element

of the crime of genocide in such cases is well-nigh impossible to prove.

As was

noted by the ICJ in the genocide cases, forcible removal of a group from

a territory does not necessarily equal its destruction: as cynical and evil as it may

sound, in the perpetrators’minds the victims maintain a right to exist –only

elsewhere. This does not make ethnic cleansing more legitimate or less heinous:

it remains a crime under international law. The fact that the legal concept of

54 Patricia M. Wald, “Genocide and Crimes against Humanity”(2007) 6 Washington Univer-

sity Global Studies Law Review.

55 Petrovic, p. 17. Also in ICTY (IT-95-16) Prosecutor v. Zoran Kupreskic et al. Trial Judgment

of 14 January 2000, para. 636; ICTR (IT-97-23) Prosecutor v. Jean Kambanda Trial Judg-

ment of 4 September 1998, para. 16; ICTY (IT-99-36) Prosecutor v. Radoslav Brdanin Trial

Chamber Judgment of 1 September 2004 (hereinafter Brdanin Trial Judgment) para. 699.

56 KrstićTrial Judgment para. 571.

57 See David L. Nersessian, “Comparative Approaches to Punishing Hate: The Intersection of

Genocide and Crimes against Humanity”(2007) 43 Stanford Journal of International Law

221., pp. 246–247. Brdanin Trial Chamber para. 697.

58 See, for example, Wald, p. 630.

59 Rome Statute Art. 7(1) has some forms of special mental elements, like: persecution, enforced

disappearances of persons, etc.

60 Petrovic, p. 351.

61 Ibid.

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genocide prima facie does not cover every ethnic cleansing means only that the

legal category of crimes against humanity must also be examined to identify the

proper legal framework.

This ﬁnding also does not mean that “crimes against humanity”and “ethnic

cleansing”are two synonymous terms for the same phenomenon: as “ethnic

cleansing”is a non-legal term, such an equation can hardly be correct. The cor-

rect conclusion is that certain forms of crimes against humanity and ethnic

cleansing actually do overlap. It was also shown above that the ICJ left open the

door for an interpretation of ethnic cleansing as genocide.

Acts of ethnic

cleansing are essentially stuck at the border between genocide and crimes against

humanity. In order to identify the elements laying the foundations for judicial

ﬁndings, a court-by-court method should be applied, as the elements of crimes

against humanity have changed considerably since its ﬁrst appearance in positive

law, which happened in the London Agreement of 1945.

International military tribunals

Although the jurisprudence of the International Military Tribunals (IMTs) has

been essential to contemporary international criminal law, it is hardly indicative

of the legal classiﬁcation of ethnic cleansing. An important reason for this is that

public conscience of the period was shocked by and focused on the destructive

nature of genocide

as “an old practice in its modern development”rather

than the forced and mass displacement of entire peoples. Establishing an ethnic-

ally homogeneous area was not the only goal of the atrocities, but such

a territory was achieved by the destruction of a selected part of the population.

The pre-war policy of forced emigration of the Jews from Germany, which

would be understood today as ethnic cleansing, was therefore later superseded

by the more destructive genocidal practices, as shown for example by the well-

known Nazi policies of the Endlösung,

reﬂected also in the Eichmann case

or by the SS reports submitted as evidence in the Einsatzgruppen case.

The IMT cases suggest that the intent to destroy was stronger than the intent

to expel the population from occupied territories.

The overlap between crimes against humanity and genocide in the immediate

post-war practice is further strengthened by the relative uncertainty of the legal

terminology of that time. Differentiation between crimes against humanity and

genocide was only evolving along with the deﬁnitions themselves. The judgment

in the trial of the major war criminals at the IMT in Nuremberg carefully

62 See supra, note 43.

63 Kristina Hon, “Bringing Cultural Genocide in by the Backdoor: Victim Participation at the

ICC Comment”Seton Hall Law Review 359, p. 364.

64 Christopher Browning, The Origins of the Final Solution (University of Nebraska Press –Yad

Vashem Institute 2004), pp. 1, 18–19, 35.

65 Schabas, Genocide in International Law, p. 200.

66 Ohlendorf et al. (Einsatzgruppen Case), USA MT IX, Judgment (08-04-1948)(E) p. 424.

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avoided using the new name for the crime of genocide, since the judges

delivered their judgment two years prior to the ﬁnalisation of the Genocide

Convention. Instead, the genocidal acts and policies that urged Lemkin to pro-

pose this new term were treated in the judgment as the crime against humanity

of persecution. Subsequent Nuremberg judgments under Control Council Law

No. 10 were bolder, and at several times they used the term “genocide,”

but

not as a sui generis charge. Due to this factual and normative mixture of geno-

cide and crimes against humanity, the search for legal classiﬁcation of ethnic

cleansing must focus on more recent jurisprudence.

The Tokyo trials draw attention to yet another important element of ethnic

cleansing: it designates the targeted ethnic group as “the enemy”as such, so

that it must be cleansed from a territory. The resulting unlawful and indiscrim-

inate violence in an armed conﬂict can also be treated as a war crime, instead of

the more serious crimes against humanity or genocide. Although certain prac-

tices matching today’s ethnic cleansing concept were not alien to the war in the

Far East, the Tokyo Tribunal addressed them mostly as war crimes. In the early

1930s the Japanese Kwantung Army murdered 2,700 civilians in Manchuria for

allegedly supporting the units of the Chinese volunteer army. A report from the

later prime minister, Kuniaki Koiso, then Chief of Staff of the Kwantung Army

to the Japanese War Ministry, explained these killings by an escalating ethnic

struggle: “Racial struggle between Japanese and Chinese is to be expected.

Therefore, we must never hesitate to wield military power in case of

necessity.”

“This practice continued throughout the China War; the worst

example of it probably being the massacre of the inhabitants of Nanking in

December 1937.”

The treatment of this practice as war crimes may be

explained by the design of the Japanese Government not to apply the laws of

war in the operations in Manchuria, which they dubbed as an “incident.”

Subsequent practice, however, suggests that the sheer scale and the discrimin-

atory nature of ethnic cleansing makes it a more serious crime.

UN ad hoc tribunals

From the outset the practice of the UN ad hoc tribunals faced the many polit-

ical and legal challenges. One of the biggest legal tasks was to adapt the IMTs’

legacy to the major developments in the positive laws of humanity, namely

67 “Even when Germany was retreating on all fronts, many troops sorely needed on the battle-

ﬁeld were diverted on this insane mission of extermination. In deﬁance of military and eco-

nomic logic, incalculable manpower was killed off, property of every description was

destroyed –all remained unconsidered as against this insanity to genocide.”Ohlendorf et al.

(Einsatzgruppen Case), USA MT IX, Judgment (08-04-1948)(E) p. 451.

68 International Military Tribunal for the Far East, Judgment of 4 November 1948, p. 49603.

69 For more details, see ibid., p. 49605.

70 “It was ofﬁcially decided in 1938 to continue to call the war in China an ‘Incident’and to

continue for that reason to refuse to apply the rules of war to the conﬂict.”Ibid., p. 49602.

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international human rights law and international humanitarian law. The develop-

ment of the notions behind crimes against humanity ﬁt into this pattern, and

the text of the respective statutes evolved considerably through the jurispru-

dence of the tribunals. As one focal point of this evolution, international media

coverage started to use the phrase “ethnic cleansing”from the early 1990s to

describe the events in the former Yugoslavia and subsequently in various

ongoing African conﬂicts.

Following the traditions of the post-war tribunals, Article 5 of the ICTY

Statute deﬁned crimes against humanity as a set of criminal actions directed

against any civilian population.

While this list lacked any explicit reference

to ethnicity, nonetheless there were several crimes which were of particular

relevance for the evaluation of ethnic cleansing. Deportation

and

persecution

were clearly key punitive elements of that practice, leading to

forcible removal from a territory and mass deprivations of human rights

based on certain protected characteristics. These characteristics were listed

and included political, racial, or religious grounds. Crimes against humanity

as they were deﬁned by the Statute of the International Criminal Tribunal

for Rwanda (ICTR) differed in two major aspects from those of the ICTY.

First, there was no connection to an armed conﬂict, but an attack of

a widespread or systematic nature on the civilian population was required.

Second, a discriminatory element was added to the general requirements of

crimes against humanity, whereas the attack on the population derived from

national, political, ethnic, racial, or religious grounds.

Against this statutory background both tribunals treated cases involving

atrocities that the general media reported as “ethnic cleansing”even though

the legal classiﬁcationwasalwaysdifferent.AstheICTYTrialChamber

observed, “the so-called ‘ethnic cleansing’,[…] although it is not a term of

art, is particularly germane to the work of this Tribunal.”

Both tribunals

carefully avoided promoting ethnic cleansing as a legal category, but could

not and did not recede from addressing that practice. Judges found appropri-

ate legal categories in two basic manners: ﬁrst, by means of identifying dis-

tinctive elements for the respective crimes against humanity, namely

deportation/forcible transfer and persecution; and second by examining, in

appropriate instances, the shared purpose of the perpetrators as part of the

applicable mode of liability.

The ﬁrst relevant crime against humanity to be examined here is deportation

or forcible transfer. The difference between these two acts is the existence or

71 This statutory deﬁnition still linked crimes against humanity to an armed conﬂict, which was

factually true in the former Yugoslavia, but such a condition was omitted from later texts. The

Statute of the ICTR proved to be more inﬂuential in this regard via the establishment of the

threshold of a “systematic or widespread”nature of the attack on the civil population.

72 Art. 5 (d).

73 Art. 5 (h).

74 Kupreskic Trial Judgment, para. 606.

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lack of a cross-border element.

The common aspect in both cases is displace-

ment, which is not necessarily unlawful in and of itself.

As some defence coun-

sels argued,

it may be demanded by humanitarian considerations, maybe even

by an international humanitarian law obligation.

However, for both crimes

“the absence of genuine choice [on the part of the victims] makes displacement

unlawful.”

This “genuine choice”should not be equated with consent. Also,

displacement is not temporary: the intent is to displace on a permanent basis.

Deportation is “an open-conduct crime. In other words, the perpetrator may

commit several different conducts which can amount to ‘expulsion or other

coercive acts’, so as to force the victim to leave the area where he or she is law-

fully present.”

Persecution is much akin to genocide, although it is a far less restrictive

crime. Like genocide, the “ultimate victim […] is the group, although its

destruction necessarily requires the commission of crimes against its members,

that is, against individuals belonging to that group.”

The victims of persecu-

tion are also singled out because of their membership in a particular group,

which leads to the speciﬁc mental element.

In the Kordic and Cerkez Trial

Judgment, the ICTY further clariﬁed the discriminatory intent behind persecu-

tion: “[T]he acts of the accused must have been aimed at singling out and

attacking certain individuals on discriminatory grounds,”with the aim of

“removal of those persons from the society in which they live alongside the per-

petrators, or eventually even from humanity itself.”

This closing remark –the

removal from humanity –implies that although persecution is aimed at a serious

deprivation of human rights, or, in the form of an ethnic cleansing aimed at

removal, it may also be tantamount to actual physical destruction.

Although persecution is a more open crime than either genocide or

deportation,

the acts constituting persecution are nevertheless measured against

75 ICTY (IT-97-24-A) Prosecutor v. Milomir StakićTrial Chamber Judgment of 31 July 2003,

para. 671.

76 See e.g., ICTY Prosecutor v. Jovica Stanišić& Franko Simatović(IT-03-69) Trial Judgment

paras. 993–995; KrstićTrial Judgment paras. 524–527.

77 See supra, note 75.

78 Article 49 of the 4th Geneva Convention 1949. See also Jean-Marie Henckaerts and Louise

Doswald-Beck, “Customary International Humanitarian Law”Cambridge University Press-

ICRC Geneva, 2005, Rule 129 p. 457 et seq.

79 Krnojelac Appeal Judgment, para. 229. Simatovićet al. Trial Judgment 993–994.

80 Simatovićet al. Trial Judgment 995.

81 ICC-01/09-01/11-373 Ruto et al. Decision on the Conﬁrmation of Charges Pursuant to Art-

icle 61(7)(a) and (b) of the Rome Statute para. 244.

82 ICTY Prosecutor v. Dusko Sikirica, Damir Dosen, Dragan Kolundzija, Case No. IT-95-8-T,

Judgment on Defence Motion to Acquit, 3 September 2001 (“Sikirica Rule 98bis Decision”),

para. 89.

83 See, for example, the Kupreskic Trial Judgment, paras. 636 & 751.

84 Kordic and Cerkez trial, para. 214. See also the Kupreskic Trial Judgment, para. 634.

85 See: Kordic and Cerkez para. 191–192; Kupreskic Trial, paras. 597–598.

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strict standards. The underlying acts must infringe on a fundamental right and

must be of a gravity comparable to other crimes against humanity,

but these acts

alone, without any distinguishing criteria, are not necessarily crimes under inter-

national law.

The acts, taken together, must pass the threshold of an international

crime. As the ICTR formulated in the Nahimana case: “underlying acts of persecu-

tion can be considered together. It is the cumulative effect of all the underlying acts

of the crime of persecution which must reach a level of gravity equivalent to that

for other crimes against humanity.”

Deportation, forcible transfer, and the openly deﬁned actus reus of persecu-

tion together broadly encompass the versatile set of actions establishing an

ethnic cleansing.

At the same time, the similarly open mental element of this

latter crime makes the label of persecution less ﬁtting to ethnic cleansing. Per-

secution is a discriminatory crime, and does not require an intent to destroy,

but the intent to expel is also missing from its elements. In situations of ethnic

cleansing this gap may cause important supporters of –or even the very

masterminds of –ethnic cleansing to avoid criminal justice, if they themselves

do not commit the acts of persecution,

but “only”create the fateful

commondesignthereof.

The underlying acts creating the coercive force to expel the selected popula-

tion varied from killing, torture, beatings, and rape to arson and destruction of

property and places of religion. Such atrocities could take place at a number of

indeterminate locations: in private homes, military barracks, police stations,

internment camps, or even UN safe zones. This variety of acts and locations car-

ries with it the inherent danger that the acts are treated as independent human

rights violations or war crimes. Nevertheless, in spite of the diverse acts, the

common purpose behind ethnic cleansing remained clearly identiﬁable and

established the link among the distinct elements, particularly in the Bosnian con-

ﬂict. For the ethnic Serb perpetrators, strong evidence of such a plan was

a statement from the leader of the Bosnian Serb State, Radovan Karadzic, where

he articulated six strategic goals of the Serbian People of Bosnia and Herzegov-

ina. The ﬁrst of these was the “separation from the other two national commu-

nities –separation of states”; the other goals focused on certain territorial

demands (corridors to other Serb territories or to the sea). Seizure and control

86 Popovic Appeal 762.

87 Nahimana et al. Appeal Judgment, para. 985; Brdanin Appeal Judgment, para. 296; Kvočka

et al. Appeal Judgment, para. 323; Popovic 738.

88 Nahimana, Appeal 987.

89 Deportation may even be understood as a form of persecution. See the Kupreskic Trial, para.

605; Krnojelac Appeal (IT-97-25) paras. 217–222; Stanišić& Simatović(IT-03-69) Trial

Judgment para. 970.

90 ICTY, Prosecutor v. Radoslav Brdanin, IT-99-36-A, Appeals Chamber, Judgment,

3 April 2007, paras. 407–409. See also Vincent Chetail, “Is There Any Blood on My Hands:

Deportation as a Crime of International Law Hague International Tribunals: International

Criminal Courts and Tribunals”Leiden Journal of International Law 917.

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of the territory “entailed the permanent removal of a signiﬁcant part of the non-

Serb population.”

A similar policy was found by the ICTY in the Lasva Valley

atrocities, where the Croatian community of Herzeg-Bosna launched systematic

attacks on the local Muslim population.

The common plan in this case was

proven retrospectively, by events leading to the ethnic violence

and by the

impact of the attacks.

The diverse acts which can constitute ethnic cleansing must thus be coordin-

ated according to a common plan or policy: the perpetrators act in relative con-

cert to advance that design. In the Tadic Appeal Judgment, the judges observed

such a “shared intention on the part of a group to forcibly remove members of

one ethnicity from their town, village or region (to effect “ethnic cleansing”)

with the consequence that, in the course of doing so, one or more of the vic-

tims is shot and killed.”

Technically, this “shared intention”is not an element

of the relevant crime, but is subsumed in the so-called “mode of liability”. The

physical and mental elements of the crime are required conditions for a judge to

ﬁnd that a crime has been committed, while the “mode of liability”is the

required link to connect the crime to the perpetrator.

When there is more than

one perpetrator –which is rather common in international criminal law

–this

link may reﬂect certain differences, but the perpetrators still act together to fur-

ther a “common criminal purpose.”In interpreting the post-war tribunals’case

law, the Appeals Chamber in Tadic found that in those cases “offences perpet-

rated by any of [the perpetrators] may entail the criminal liability of all the

members of the group.”

This led to a new form of criminality,

subsequently referred to as an

extended form of joint criminal enterprise, or JCE III. This mode of liability

later became highly contested, both in the international criminal legal prac-

tice and in the literature alike.

ThesameappealjudgmentinTadic deﬁned

it by establishing within the group of perpetrators “acommondesignto

pursue one course of conduct where one of the perpetrators commits an act

91 Brdanin Trial Judgment, paras. 77.

92 Blaskic Trial Judgment para. 343–350.

93 Ibid.

94 Ibid., para. 634.

95 Tadic Appeal Judgment para. 204.

96 See, for example, ICTY Prosecutor v Radoslav Brdanin Decision on Interlocutory Appeal,

19 March 2004 paras. 5–6.

97 See Giulia Bigi, “Joint Criminal Enterprise in the Jurisprudence of the International Criminal

Tribunal for the Former Yugoslavia and the Prosecution of Senior Political and Military Lead-

ers The Krajišnik Case”(2010) 14 Max Planck Yearbook of United Nations Law Online

51, p. 53.

98 Although primarily developed by the ICTY, it was also applied at the ICTR. See Ntakiruti-

mana et al. (ICTR-96-17) paras. 463–469.

99 See Andrés Pérez, “Here to Stay? Extended Liability for Joint Criminal Enterprise as a Tool

for Prosecuting Mass SGBV Crimes,”ASIL Insights, 12 June 2015; Kevin Jon Heller, “The

ECCC Issues a Landmark Decision on JCE III”opinioiuris.org, 23 May 2010.

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which, while outside the common design, was nevertheless a natural and

foreseeable consequence of the effecting of that common purpose.”

100

The

judges went on to offer an explanation: “[M]urder may not have been expli-

citly acknowledged to be part of the common design, it was nevertheless

foreseeable that the forcible removal of civilians at gunpoint might well result

in the deaths of one or more of those civilians.”

101

If these conditions are

met, the perpetrators share criminal responsibility also for reasonably foresee-

able acts which fall outside the range of their original plan. An appeals cham-

ber of the ICTY even reached the conclusion from this form of liability that

someone may become criminally liable for a genocide that he personally did

notintendtocommit,

102

although the reference cited in support of this con-

clusion reads: “in the case of participation in a joint criminal enterprise, i.e.

as a co-perpetrator, the requisite mens rea is intent to pursue a common

purpose.”

103

Having established the role of a common plan behind ethnic cleansing,

the next issue to be addressed is the difference between this common plan

and the speciﬁc genocidal intent. Raphael Lemkin gave a name to the previ-

ously nameless crime, and in doing so he pushed genocide into the spot-

light; and together with the existence of international criminal tribunals the

culture of impunity ceased to be universal. Therefore, today it is not rea-

sonable to believe that any persons organising a genocide would document

or even publish their genocidal plans.

104

Even policies for ethnic cleansing

are highly unlikely to be published. After the “war on terror”became part

of the international political parlance, the target group would most likely

be addressed as “terrorists.”Obviously, genocide could never be legitim-

ised, not even by the target population’s involvement in an armed conﬂict

or terrorist activities. The rhetorical change shows, however, that reserving

the crime of genocide solely to instances where a stated public policy of

physical destruction exists would soon render null the protection this term

can offer for the victim groups.

The resulting foreseeable lack of documentary or physical evidence would

mean that proving intent would probably require inductive or deductive

methods, and while result is not an element of the crime, the actual impact on

the target group may become an important factor in the judicial assessment of

intent.

105

However, this actual impact cannot be assessed properly without

deﬁning the target group. The ﬁrst aspect of such a deﬁnition is the assumption

that while the suffering is borne by the members of the group, the group as

100 Tadic Appeal Judgment.

101 Ibid.

102 Brdjanin, Interlocutory Appeal, paras. 5–6.

103 Vasiljevic, Appeal Judgment, para. 102.

104 Ibid., p. 357.

105 ICJ Croatian Genocide Judgment paras. 479–480; see also, for example, the Rohingya

example in MacLean, p. 91.

228 Tamas Vince Adany

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such is also the victim of genocide.

106

The perpetrator seeks and intends the

destruction of the group, although not necessarily in its entirety.

107

Targeting

a substantial part of the group is sufﬁcient to establish genocide if other elem-

ents of the crime also exist. This “substantial part”can be deﬁned, inter alia, by

using a geographical perspective; i.e. when the perpetrators focus on

a territorially-selected segment of the group.

108

The defence in Krstićargued

that deﬁning an artiﬁcial group by limiting the geographical area would contra-

dict the concept of genocide. The Chamber agreed that the group itself cannot

be deﬁned solely on the basis of its geographical location, because that is “not

a criterion contemplated by the Convention.”

109

On the other hand, consider-

ing the formula “part of a group,”the Court ruled that “the intent to eradicate

a group within a limited geographical area such as the region of a country or

even a municipality may be characterised as genocide.”

110

Genocide, therefore, is possible against national, racial, religious, or ethnic

groups living within a designated geographical area. Without a documented

genocidal intent the result in such a case is the same as in the case of an “ethnic

cleansing”–an ethnically homogeneous area, where a part of the previous

dwellers have ﬂed and another part have been destroyed.

111

Therefore, without

questioning that the delimitation between genocide and crimes against humanity

is the requisite intent, the proximity of genocide and ethnic cleansing remains

palpable.

112

The difference between the contents of the two terms seems to be

a matter of proportion.

Furthermore, the time factor of the intent adds to the already complex rela-

tionship between ethnic cleansing and genocide. The genocidal intent need not

be long-standing or premeditated.

113

It is therefore possible that a common

106 See A. Dirk Moses on “groupism”in A. Dirk Moses, “Raphael Lemkin, Culture, and the

Concept of Genocide,”in Donald Bloxham and A. Dirk Moses (eds), The Oxford Handbook

of Genocide Studies (2010); also the KrstićTrial Judgment para. 552; Akayesu Trial Judg-

ment, para. 522; Kayishema; and Ruzindana Trial Judgment, para. 99.

107 KrstićTrial Judgment para. 590: “the perpetrators of genocide need not seek to destroy the

entire group protected by the Convention, they must view the part of the group they wish

to destroy as a distinct entity which must be eliminated as such.”

108 Ibid.: “the physical destruction may target only a part of the geographically limited part of

the larger group because the perpetrators of the genocide regard the intended destruction as

sufﬁcient to annihilate the group as a distinct entity in the geographic area at issue. In this

regard, it is important to bear in mind the total context in which the physical destruction is

carried out.”

109 KrstićTrial Judgment paras. 558–559.

110 KrstićTrial Judgment paras. 589–595. According to early commentators (Robinson, Drost)

cited by the judges, it may be “a region or even a local community if the number of persons

targeted was substantial.”See also “Report of the Commission of Experts, UN Doc. S/

1994/674”para. 94.

111 See KrstićTrial Judgment 595.

112 See, for example, Benjamin Lieberman, “Ethnic Cleansing versus Genocide?”in Donald

Bloxham and A. Dirk Moses (eds), The Oxford Handbook of Genocide Studies (2010); Sirkin.

113 KrstićTrial Judgment, para. 572; Jelisic Appeal Judgment para. 48: a plan is not required.

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plan had been established to create an ethnically homogeneous area by means of

deportation and persecutions, but at some points the perpetrators opted for the

physical destruction of the group, at least partially. This suggests that the aim of

ethnic cleansing and genocidal intent are in a dynamic relationship: ethnic

cleansing may be a herald of genocide.

114

The somewhat obsolete JCE III

responsibility added further complexity by making it possible to ﬁnd responsibil-

ity even if the intent of several perpetrators changed, but the result ﬁnally

achieved would have already been reasonably foreseeable according to the ori-

ginal plan: an intent to forward the common plan may be sufﬁcient to ﬁnd

someone criminally liable for genocide.

115

The Chamber in Krstićacknow-

ledged a progressively developing convergence between the concepts of ethnic

cleansing and genocide in international customary law.

116

However, the major-

ity of the judges remained doubtful about the actual results of that progress at

the time of the judgment, and therefore based their ﬁndings on the more

restrictive interpretation of genocide.

If it is accepted that genocide can be committed against a part of the tar-

geted group living in a sufﬁciently large area, the actual methods used for

the destruction of the group are also relevant from the perspective of ethnic

cleansing. Contrary to the original ideas of Raphael Lemkin, cultural geno-

cidewasrejectedintheﬁnal text of the Convention, with the exception of

theforcibleremovalofchildrenfromthegroup.Thereforetodayan“enter-

prise attacking only the cultural or sociological characteristics of a human

group in order to annihilate these elements –which give that group its own

identity distinct from the rest of the community –would not fall under the

deﬁnition of genocide.”

117

A forced assimilation or dissolution of a group is

therefore not genocide, but this observation does not deﬁne what are those

elements which only “give to that group its identity”(cultural genocide)

118

and what are those which are necessary for the survival of the group itself

(e.g. economic genocide).

119

Access to a speciﬁc territory may be regarded under both headings: living in

a territory may be part of the identity of a group, or it might be essential for its

survival. While it is physically possible for the members of the group to earn

a living elsewhere, it also seems reasonable to accept that mass displacement is

114 Schabas, Genocide in International Law.

115 Supra, see notes 97–98.

116 Krstic Trial Judgment, para. 580, notes this ongoing development (see also para. 571),

whereas ethnic cleansing under resolutions speciﬁcally referred to at the time of the Judg-

ment notes only physical or biological destruction. Para. 571 reads: “Some legal commenta-

tors further contend that genocide embraces those acts whose foreseeable or probable

consequence is the total or partial destruction of the group without any necessity of showing

that destruction was the goal of the act.”

117 KrstićTrial Judgment 580.

118 Lemkin, Axis Rule, p. 83.

119 Ibid.

230 Tamas Vince Adany

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different from mere suppression of a culture, a language, or a religion.

120

The writings of Lemkin make it clear that he associated destruction with the

“crippling”of the group.

121

None of the above answer the question whether deprivation from access to

a territory can be a form of the physical destruction required by the legal con-

cept of genocide. To approve such an interpretation, it must be shown ﬁrst that

living on a territory can be a part of the group’s identity; and second that the

deprivation from access to the territory will result in the group’s destruction.

The special role of a territory as an identity element is supported by, for

example, UNGA Resolution 61/295 issued under the United Nations Declar-

ation on the Rights of Indigenous Peoples. This Declaration has recognised on

multiple occasions the connection between an indigenous group and the terri-

tories which they traditionally owned. The text does not make any explicit refer-

ence to either ethnic cleansing or genocide;

122

however, some inferences can be

made from the prohibition of deportation and forcible transfer.

123

Article 26 of

the Declaration recognises an explicit right of indigenous people to the “the

lands, territories and resources which they have traditionally owned, occupied or

otherwise used or acquired.”The special link to a territory requires a closer

examination in future cases where indigenous people are targeted by ethnic vio-

lence, and Lemkin’s original ideas on cultural genocide may gain new support

in this respect.

124

Case law also incorporates a connection between the group’s survival and its

access to its territory, but with a reservation of causality. Genocide may also

incapacitate the group from returning to its previous location. Such a result was

found in case of the Srebrenica genocide, and this result was in turn used as

evidence of the genocidal intent:

The strategic location of the enclave, situated between two Serb territories,

may explain why the Bosnian Serb forces did not limit themselves to expel-

ling the Bosnian Muslim population. By killing all the military aged men,

the Bosnian Serb forces effectively destroyed the community of the Bosnian

Muslims in Srebrenica as such and eliminated all likelihood that it could

“ever re-establish itself on that territory”.

125

The remaining issue is therefore whether a group can be destroyed by forcible

removal from its territories. Nothing in the preparatory works or in the case law

120 Ferrara, p. 2.

121 Lemkin, “Genocide”(1946); see also Moses.

122 UNGA Resolution 61/295 Article 8.

123 UNGA Resolution 61/295 Article 10.

124 For more details, see Damien Short, “Cultural Genocide and Indigenous Peoples:

A Sociological Approach”(2010) 14 The International Journal of Human Rights 833.

125 KrstićTrial Judgment, para. 597.

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suggests that the destruction of a group which is the victim of genocide must

be immediate. The Trial Chamber in Akayeshu ruled

that the expression deliberately inﬂicting on the group conditions of life cal-

culated to bring about its physical destruction in whole or in part, should

be construed as the methods of destruction by which the perpetrator does

not immediately kill the members of the group, but which, ultimately, seek

their physical destruction.

126

It therefore seems more likely that the causality between the genocidal act and

the intended destruction of the victim group must be direct, but not

imminent.

127

A direct link would mean that even absent any third-party inter-

vention or deus ex machina, the perpetrators’actions would result in the elimin-

ation of the group as such. But genocide can also be committed through the

slow death of the group.

128

Ethnic cleansing can be designed to achieve such

ends, although it poses difﬁculties in proving that such a result was the “calcula-

tion”of the perpetrators.

129

By coercive means, a smaller part of the group is

destroyed locally, which places their survival in a position without any genuine

choice. If they stay, their destruction would be immediate. If they leave, the

group will lose its identity. This could very well happen if, for example,

a religious minority is deprived of access to holy places; or if a linguistic minority

is forced to ﬂee to a country where a one-language policy is in force. In cases

like this, forcible removal from the territory physically eliminates the group in

the targeted area as well, as it destroys the group itself within one or two

generations.

Conclusions

The works of Raphael Lemkin did not reﬂect on “ethnic cleansing”under

this heading as such, but his writings strongly suggest that he included the

distinctive elements of such a policy in his deﬁnition of genocide. These are

theveryelementsthatwerepersistently removed from his original concept in

the treaty-making procedure. The ﬁnal, restrictive version of genocide

became part of international law in 1948 and is therefore the foundation for

any legal argument. In criminal law an extensive interpretation is less than

welcome. The gravity of the offence requires a very careful approach, even in

a mere academic examination. While there is a temptation to use “genocide”

in a broader sense to offer wider protection for the victims, the term should

126 Akayesu, Trial Judgment, paras. 505–506.

127 Lemkin, Axis Rule, p. 79.

128 Ibid. See also Payam Akhavan, “The Crime of Genocide in the ICTR Jurisprudence”

(2005) 3 Journal of International Criminal Justice 989, p. 1004.

129 William A. Schabas, “‘Ethnic Cleansing’and Genocide.”

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be reserved for the most serious acts. “A strong case can be made that the

reckless use of the term ‘genocide’is dangerous.”

130

The above arguments

are therefore not meant to present a case for a re-conceptualisation of the

legal deﬁnition of genocide.

At the same time, however, a total rejection of ethnic cleansing as a form of

genocide would be a mistake and stand in contradiction to the intent of

Lemkin. He

did not deﬁne genocide as the attempted extermination of an entire group.

Lemkin, who lost 49 members of his family, including his parents, to the

Final Solution, knew that if extermination were the threshold for

a response, action would inevitably come too late.

131

Several authors argue that ethnic cleansing is a forerunner of a genocide to

come. After the Wannsee Conference decided on the details of the Final Solu-

tion, the violence against European Jews rose to a new, horrible level. The dif-

ference between the pogroms and the Kristallnacht marked –when compared

to the horror of the concentration camps –a change in the aim of the perpet-

rators, but it may or may not be the pattern for future events in different cul-

tural settings.

At the same time, ﬁxing a rigid, restrictive concept of genocide and then

stretching it to encompass any mass violence is equally wrong. In light of Lem-

kin’s writings, an outright rejection of new forms of genocide, where the phys-

ical destruction is not as prevalent as it had been in the twentieth century, as

well as accepting that any mass atrocity is genocide, would both indeed lead to

strange results. As A. Dirk Moses wrote, it would suggest

that Lemkin did not properly understand genocide, despite the fact that he

invented the term and went to great trouble to explain its meaning. Instead,

most scholars presume to instruct Lemkin, retrospectively, about his con-

cept, although they are in fact proposing a different concept, usually mass

murder.

132

Today there seems to be increasing agreement among academics that certain

forms of ethnic cleansing fall within a grey zone

133

between crimes against

humanity and genocide. If it is accepted that genocide can be committed with-

out the physical and imminent annihilation of the victim group, it becomes

130 Robert M. Hayden, “‘Ethnic Cleansing’and ‘Genocide’” (2007) 17 European Journal of

Public Health 546.

131 See Samantha Power, “It’s Not Enough to Call It Genocide”, Time, 4 October 2004.

132 A. Dirk Moses, “Raphael Lemkin, Culture, and the Concept of Genocide,”in Donald Blox-

ham and A. Dirk Moses (eds), The Oxford Handbook of Genocide Studies (2010).

133 See, for example, Hon, p. 375.

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obvious that mass forced removal of people from their homes may easily destroy

the group locally. The International Criminal Court Pre-Trial Chamber in Al-

Bashir noted that

the practice of ethnic cleansing –which usually amounts to the crime

against humanity of persecution […] may result in genocide if it brings

about the commission of the objective elements of genocide provided

for in article 6 of the Statute and the Elements of Crimes with the

dolus specialus/speciﬁc intent to destroy in whole or in part the tar-

geted group.

134

In this grey zone there are already policies of ethnic cleansing that should be

classiﬁed as genocide. The simplicity of the arguments presented in the separate

opinion of Judge Lauterpacht in the Bosnian Genocide Case at the ICJ is

indeed convincing:

[I]t is difﬁcult to regard the Serbian acts as other than acts of genocide

in that they clearly fall within categories (a), (b) and (c) of the deﬁnition

of genocide quoted above; they are clearly directed against an ethnical or

religious group as such, and they are intended to destroy that group, if

not in whole certainly in part, to the extent necessary to ensure that that

group no longer occupies the parts of Bosnia-Herzegovina coveted by

the Serbs.

In simpler terms: if the act is genocidal, the intent is genocidal, and the victim

group is protected by the Convention –then why should it not be called

a genocide?

The hesitation to admit the existence of such a grey zone or an actual

overlap may be due to several different reasons. To balance the arguments

basedonthetravaux préparatoires of the Genocide Convention, it should be

noted that during the creation of the Genocide Convention forced popula-

tion transfers were taking place in European and other Allied countries in

surprisingly large proportions. The end of World War II was followed by

mass, forced expulsions of populations (often sharing the ethnicity of former

Axis countries, which were perceived to be responsible for the Holocaust).

135

The Soviet authorities alone effectively cleansed large areas they had obtained

from Poland, Hungary, and Romania as well as their own former territories,

like the Crimean Peninsula –and a signiﬁcant part of the deported persons

134 ICC-02/05-01/09 The Prosecutor v Omar Hassan Al-Bashir, Decision on the Prosecution’s

Application for a Warrant of Arrest against Omar Hassan Ahmad Al-Bashir, 4 March 2009,

Para. 145.

135 Liebermann; Hayden, p. 728.

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diedingulagslocatedinoraroundSiberia.

136

Hundreds of thousands of

civilians were selected from “working age”men and women –so tragically

echoing the later Srebrenica genocide committed against men of “military

age”(while both terms generally deﬁned the mating age for human beings).

The reluctance toward group rights thus did not prevent policies based on

collective guilt, but this was never a monopoly of autocratic or totalitarian

regimes.

137

It would have been a political impossibility in the late 1940s to

include these acts within the same legal categorisation as the Holocaust.

Contemporary advocacy groups also argue that

the term to be used [in public discourse] is determined by willingness to

take action to stop the killing. When the terms ‘ethnic cleansing’or ‘crimes

against humanity’were used, it indicated unwillingness to take forceful

action to stop the crimes. These weak words have never motivated the use

of force.

138

However, calling an atrocity a genocide does not guarantee intervention, either.

139

Admitting that an ethnic cleansing which resulted in a genocide was actually

genocide itself would help to avoid an implicit, sordid dilemma for future

judges. If ethnic cleansing practices must be separated from the subsequent

genocide, who will be able to name the last victim of the ethnic cleansing and

identify the ﬁrst victim of the genocide?

136 See Tamas Stark, “Genocide or Genocidal Massacre? The Case of Hungarian Prisoners in

Soviet Custody”1(3) Human Rights Review, p. 109; Milada Polisenska, “Legal, Diplomatic

and Moral Aspects of Deportation of Czechoslovaks to the Soviet Gulag,”in Peter Bolcha

and Rowland M. Brucken (eds.), Proceedings of the Interdisciplinary Conference on Human

Rights. Praha: Anglo-Americká Univerzita. Vermont: Norwich University (2019), p. 101.

137 Liebermann.

138 “Persecution, Forced Displacement, and Genocide of Rohingya, Kachin, Shan, Karen and

Other Minorities of Myanmar.”Testimony of Dr. Gregory H. Stanton to the Permanent

People’s Tribunal Kuala Lumpur, Malaysia 18 September 2017.

139 Rebecca Hamilton, “The G-Word Paradox: Why Calling an Atrocity a ‘Genocide’Is Rarely

a Game-Changer,”at www.foreignpolicy.com 22 March 2016.

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11 Genocide and culture

Revisiting their relationship 70 years

after the Genocide Convention

Marco Odello

Introduction

The present chapter starts from the assumption that the deﬁnition of genocide

in the 1948 Convention on the Prevention and Punishment of the Crime of

Genocide (Genocide Convention)

was the product of a speciﬁc historical, polit-

ical, and ideological context; and that the text of the Convention was limited in

some dimensions by several factors that inﬂuenced the choices made by states at

the time. This issue has been well described by Bilsky and Klagsbrun as the

‘inherent tension between law and history.’

Since the adoption of the 1948 Genocide Convention, actions and crimes that

have led to different instances of genocide have not ceased. Furthermore, there has

been an increasing use of different methods by actors who have perpetrated genocidal

actions, and these deserve particular attention in order to understand whether the ori-

ginal deﬁnition adopted by the 1948 Genocide Convention may provide for new or

different ways of interpretation of the crime and its components. The aim of this chap-

ter is to explore in particular the link between genocide and culture, including the

destruction of cultural heritage, property, and other cultural expressions, such as lan-

guages and traditions. These cultural expressions have different deﬁnitions,

such as:

(1) ‘cultural heritage,’which includes the legacy of physical artefacts and intangible

attributes of a group or society that are inherited from previous generations, main-

tained in the present, and bestowed for the beneﬁt of future generations;

(2) ‘tan-

gible heritage,’which includes buildings, historic places, monuments, artefacts, etc.

which are considered worthy of preservation for the future; and (3) ‘intangible heri-

tage,’deﬁned as ‘the practices, representations, expressions, knowledge, skills –as well

1 UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide,

9 December 1948, United Nations, Treaty Series, Vol. 78, p. 277.

2 Leora Bilsky & Rachel Klagsbrun, ‘The Return of Cultural Genocide?’(2018) 29(2) European

Journal of International Law 373–396, 375.

3 See Janet Blake, International Cultural Heritage Law (Oxford: Oxford University Press,

2015).

4 UNESCO, Convention Concerning the Protection of the World Cultural and Natural Heritage,

Paris, 16 November 1972, Article 1.

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as the instruments, objects, artefacts and cultural spaces associated therewith –that

communities, groups and, in some cases, individuals recognize as part of their cultural

heritage.’

These include objects signiﬁcant to the archaeology, architecture, science,

or technology of a speciﬁcculture.

This chapter takes into account three main issues:

1 The discussion on genocide that led to the adoption of its international legal

deﬁnition in 1948;

2 The developments in international law related to human rights, and cultural

rights in particular, that came after the adoption of the Genocide

Convention;

3 The role of international criminal jurisdictions in addressing actions against

cultural heritage and goods.

This study is premised on a cohesive view of the relationship between different

areas of international law and some of their sub-categories, such as international

human rights law, international humanitarian law (IHL), and international criminal

law. These areas of international law have emerged and developed over time in dif-

ferent –but often related –contexts, and with very similar purposes, such as the

protection of human dignity and providing protection for the victims of certain

acts. Often the developments in one area have inﬂuenced new developments in

other areas. For instance, the violations of IHL during the Second World War led

to the development of a new area of international criminal law, as the crimes com-

mitted against individuals in armed conﬂicts increased the support for the adoption

of the 1949 Geneva Conventions and their 1977 Additional Protocols.

The present chapter looks at the development of cultural rights in inter-

national law, and how there is a growing need for their more explicit protection

when they are targeted, whether in situations of peace or during armed conﬂicts.

In both cases it is relevant to consider how recent developments in international

criminal law have included more and better references to the protection of cul-

tural property, and how useful it would be to have a more comprehensive

approach to the protection of cultural goods and heritage. The purpose of this

analysis is also to avoid an ‘anachronism’in international law, an idea developed

by Reisman with particular reference to human rights and sovereignty, as

[a]nachronism can only be avoided in legal decision by systematic actualiza-

tion, which considers inherited norms in the context of changed constitutive

normative systems and makes sensitive assessments of the relative weight each

is to be given and the various intensities with which each is demanded.

5 UNESCO, Convention for the Safeguarding of the Intangible Cultural Heritage, Paris,

17 October 2003, Article 2.

6 W. Michael Reisman, ‘Sovereignty and Human Rights in Contemporary International Law’

(1990) 84 Am. J. Int’lL.866–876, 874.

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Also, this evolutionary approach to interpretation can be found in the 1969

Vienna Convention on the Law of Treaties (VCLT),

which in Article 31(3)(c)

refers to ‘any relevant rules of international law applicable in the relations

between the parties’as a way to determine the meaning of the obligations

under a treaty. This method provides for a more teleological interpretation of

treaties; one that would better secure the application of the ‘object and purpose’

of treaties, as deﬁned by Article 31(1) of the 1969 VCLT. It is clear that this

interpretation should not exceed the meaning and purposes of the treaty, as

Fitzmaurice explained that

[t]his, of course, however excellent, is not law but sociology; and although

the aim is said to be “in support of the search for the genuine shared

expectations of the parties,”it would in many cases have –and is perhaps

subconsciously designed to have –quite a different effect, namely, in the

guise of interpretation, to substitute the will of the adjudicator for that of

the parties.

However, inasmuch we are dealing with human rights protection, it would be

appropriate to take into consideration the approach to interpretation provided

by Article 29 of the American Convention of Human Rights;

i.e. that the inter-

pretation of international instruments should be done in the light of the legal

framework at the time of interpretation,

based on the International Court of

Justice’s Advisory Opinion in the Namibia case.

Also, the pro homine inter-

pretation, which has been afﬁrmed repeatedly by the Interamerican Court,

provides a teleological approach in favour of a better protection of human

rights, which can help in the discussion in this chapter.

7 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations,

Treaty Series, Vol. 1155, p. 331.

8 Gerald Fitzmaurice, ‘Vae Victis or Woe to the Negotiator? Your Treaty of Our Interpretation

of It’(review essay) (1971) 65 AJIL 358–373, 372.

9 Organization of American States (OAS), American Convention on Human Rights, ‘Pact of

San Jose’,CostaRica, 22 November 1969, available at: www.refworld.org/docid/

3ae6b36510.html [accessed 10 November 2019].

10 IA Court H.R., Interpretation of the American Declaration of the Rights and Duties of Man

within the Frame-work of Article 64 of the American Convention on Human Rights, Advisory

Opinion OC-10/89, 14 July 1989, Series A No. 10, para. 37.

11 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South

West Africa) not-withstanding Security Council Resolution 276 (1970), Advisory Opinion

[1971] ICJ Rep 16.

12 IA Court H.R., Case of Ricardo Canese v. Paraguay, Merits, Reparations, and Costs, Judg-

ment of 31 August 2004, Series C No. 111, para. 181.

13 For a full discussion on this matter, see Lucas Lixinski, ‘Treaty Interpretation by the Inter-

American Court of Human Rights: Expansionism at the Service of the Unity of International

Law’(2010) 21(3) EJIL 585–604.

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The original proposals regarding the deﬁnition of genocide by Lemkin,

who supported a broader concept of genocide, should be reconsidered in

light of the developments that have taken place in the last 70 years. Both

human rights protection and international criminal law cases seem to support

a renewed approach to the concept of genocide that could take into account

the original proposed deﬁnition. Also, the development of group rights in

relation to minorities and indigenous people, and the deﬁnition of culture

(which is elaborated below) seem to support a more coherent approach that

links acts against culture to international crimes that may affect humanity

more generally, and speciﬁc groups in particular.

The purpose of this chapter is not to read into the deﬁnition of genocide

what was not expressly included by states in 1948. Rather, it attempts to justify

the possible inclusion of certain acts that did not receive sufﬁcient attention at

the time –for different reasons that will be explained –but which have become

more relevant during the past 70 years, due to the evolution of international

rules and principles that cannot be set aside in the process of interpretation of

legal rules in contemporary scenarios. One of these is certainly the concept of

culture, its deﬁnition, and its relevance for nations, minorities, and groups in

international law.

Deﬁnition of genocide in the 1948 Convention and the

historical and political background

The adoption of the 1948 Genocide Convention was based on a series of

historical and political factors which both inﬂuenced and distorted the ori-

ginal proposals that were formulated by Raphael Lemkin. The original

draft, based on the scripts of Lemkin, who wrote on this subject in the

period between the two world wars, has received renewed attention in aca-

demic writings on genocide.

The time and the context in which the

Genocide Convention was adopted were not propitious for a deﬁnition of

genocide that could include the destruction of culture in the form of cul-

tural objects, artefacts, and expressions; i.e. the so-called ‘cultural genocide,’

which has been deﬁned as ‘the purposeful weakening and ultimate

14 Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government,

Proposals for Redress (Washington, DC: Carnegie Endowment for International Peace, 1944)

79–95.

15 See, among others, Douglas Irvin-Erickson, Raphael Lemkin and the Concept of Genocide

(Philadelphia, PA: University of Pennsylvania Press, 2017) 19–41; A. Dirk Moses, ‘Raphael

Lemkin, Culture, and the Concept of Genocide’, in Donald Bloxham and A. Dirk Moses

(eds), The Oxford Handbook of Genocide Studies (Oxford: Oxford University Press, 2010)

19–41 Chapter 1; Dominik J. Schaller and Jürgen Zimmerer (eds), The Origins of Genocide:

Raphael Lemkin as a Historian of Mass Violence (London/New York, NY: Routledge, 2009);

Anton Weiss-Wendt, ‘Hostage of Politics: Raphael Lemkin on “Soviet Genocide”’ (2005)

7(4) Journal of Genocide Research 551–59.

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destruction of cultural values and practices of feared out-groups.’

How-

ever, the renewed attention to Lemkin’s writings and the relevance of inter-

national legal developments concerning the protection of culture may

provide grounds for a more comprehensive understanding of the concept of

genocide in its original formulation and its relationship to culture.

This

issue is going to be addressed by, initially, looking at the original formula-

tions of the crime of genocide and the position of those states which

rejected a broad concept of genocide in relation to cultural destruction.

Later, the concept of culture and its development and meaning in inter-

national law will be discussed to bring together the arguments related to

the role of culture in the context of genocide.

Deﬁnition of genocide: from broad to narrow

The deﬁnition of genocide provided in Article 2 of the 1948 Genocide Conven-

tion reads as follows:

In the present Convention, genocide means any of the following acts com-

mitted with intent to destroy, in whole or in part, a national, ethnical, racial

or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

It is important to keep in mind the links between the acts and the intention.

The ‘special purpose’

required for genocide means that it is essential to dem-

onstrate a speciﬁc intent on the part of the perpetrators to destroy a protected

16 Lawrence Davidson, Cultural Genocide (New Brunswick, NJ: Rutgers University Press,

2012) 18–19.

17 Leora Bilsky and Rachel Klagsbrun, ‘The Return of Cultural Genocide?’(2018) 29(2) Euro-

pean Journal of International Law 373–396; Jeffrey S. Bachman (ed.), Cultural Genocide:

Law, Politics, and Global Manifestations (London/New York, NY: Routledge, 2019).

18 ICTY, Prosecutor v. Goran Jelisić(Judgment) IT-95-10-T 14 December 1999, paras 66–108;

Geert-Jan Alexander Knoops, ‘Mens Rea and Genocide’,inMens Rea at the International

Criminal Court (Leiden: Martinus Nijhoff, 2016) 93–110; Devrim Aydin, ‘The Interpret-

ation of Genocidal Intent under the Genocide Convention and the Jurisprudence of Inter-

national Courts’(2014) 78(5) The Journal of Criminal Law 423–441; William A. Schabas,

‘The Mental Element or Mens Rea of Genocide’,inGenocide in International Law: The

Crime of Crimes, 2nd ed. (Cambridge: Cambridge University Press, 2009) 241–306.

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group.

In some cases, the destruction of culture has been used as evidence

of this speciﬁc mental intent,

as will be further discussed below.

However,

the question is whether the destruction of culture could be included in the list

of acts that aim at the destruction of the group; i.e. as an actus reus.

What is more relevant for the present analysis is that the deﬁnition of

genocide was –during the negotiations leading to the adoption of the text

of Genocide Convention –narrowed down from the original broader

proposal formulated by Lemkin, which was as follows: ‘By genocide we mean

the destruction of a nation or of an ethnic group,’

andthisactionis

pursued through ‘a coordinated plan of different actions aiming at the

destruction of essential foundation of the life of national groups, with the

aim of annihilating the groups themselves.’

These actions include plans

which would pursue the

disintegration of the political and social institutions, of culture, language,

national feelings, religion, and the economic existence of national groups,

and the destruction of the personal security, liberty, health, dignity, and

even the lives of the individuals belonging to such groups.

This deﬁnition looks comparable to the 1948 Convention insofar as it shows

that the requirement of a special intent was an original component of Lemkin’s

deﬁnition. However, the difference between Lemkin’s proposal and the Conven-

tion becomes clear when one considers the acts which could constitute geno-

cide, as Lemkin’s proposal included a wide variety of actions, without a deﬁned

catalogue. The 1948 Convention included the list of acts which qualiﬁed as

genocide in Article 2, and they must be accompanied by the special intent that

aims at the destruction of a group. However, the list of acts in the Genocide

Convention may be subject to interpretation in order to clarify the meaning of

certain acts.

Reasons behind the restriction of the actus reus

The text of the 1948 Convention clearly limited the type of acts that were tar-

geting groups through speciﬁc actions against individuals, and by doing so

affected the survival of the group. This may be linked to two main reasons: the

interests of some states at the time of the negotiations and the concept of

19 ICTR, Prosecutor v. Jean-Paul Akayesu (Judgment) ICTR-96-4-T, 2 September 1998,

para. 485.

20 ICTY, Prosecutor v. Krstić(Trial Judgment) IT-98-33-T, 2 August 2001, para. 580.

21 See the sections ‘International criminal law and culture-related crimes’and ‘Destruction of

culture and genocide’below.

22 Lemkin, Axis Rule in Occupied Europe, 79.

23 Ibid.

24 Ibid.

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human rights that was emerging in international law at the same time, as the

Universal Declaration of Human Rights (UDHR)

was adopted the day after

the adoption of the Genocide Convention at the same UN General Assembly

meeting in Paris in December 1948.

STATES’INTEREST RELATED TO MINORITIES AND COLONIAL TERRITORIES

The drafting process of the 1948 Convention included a debate on the possible

inclusion of acts aiming at the destruction of cultural elements of a group as

part of the deﬁnition of genocide. Article 1(2) of the draft proposal, presented

by the UN Secretary-General, mentioned a series of acts constituting genocide,

and in its subsection 3 it referred to:

Destroying the speciﬁc characteristics of the group by: (a) forced transfer of

children to another human group; or (b) forced and systematic exile of indi-

viduals representing the culture of a group; or (c) prohibition of the use of

the national language even in private intercourse; or (d) systematic destruc-

tion of books printed in the national language or of religious works or pro-

hibition of new publications; or (e) systematic destruction of historical or

religious monuments or their diversion to alien uses, destruction or disper-

sion of documents and objects of historical, artistic, or religious value and

of objects used in religious worship.

The debate over these aspects involved the representatives of those states which

formed an ad hoc committee, including China, France, Lebanon, Poland, the

Soviet Union, the USA, and Venezuela. This committee drafted a second ver-

sion of the Convention where the cultural dimensions of genocide were moved

to a separate article, allegedly to allow more debate and possible reservations by

delegations. The new article recited:

In this Convention genocide also means any deliberate act committed with

the intent to destroy the language, religion, or culture of a national, racial

or religious group on grounds of the national or racial origin or the reli-

gious belief of its members such as:

1. Prohibiting the use of the language of the group in daily intercourse or

in schools, or the printing and circulation of publications in the lan-

guage of the group;

25 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217

A (III).

26 Draft Convention on the Crime of Genocide prepared by the Secretary-General of the United

Nations, 26 June 1947, UN Doc E/447 in Hirad Abtahi & Philippa Webb (eds), The Geno-

cide Convention: The Travaux Préparatoires (Leiden: Martinus Nijhoff, 2008) 229.

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2. Destroying, or preventing the use of libraries, museums, schools, histor-

ical monuments, place of worship or other cultural institutions and

objects of the groups.

The subsequent debate pitted the positions of France and the USA against

those of the Soviet Union and Venezuela. The US delegation declared that

the decision to make genocide a new international crime was extremely ser-

ious, and the United States believed that the crime should be limited to

barbarous acts committed against individuals, which, in the eyes of the

public, constituted the basic concept of genocide.

On the contrary, the Soviet Union expressed the idea that ‘the concept of geno-

cide must also cover measures and actions aimed against the use of the national

language or against national culture.’

This initial debate on the relevance of culture shows that groups may be iden-

tiﬁed by certain cultural elements and that the destruction of the group may

involve not only the physical destruction of individuals. This argument becomes

particularly relevant in the contemporary debate on the protection of culture

and related rights, as will be discussed later.

However, the drafting process was steered by the interests of states that

feared possible negative repercussions connected to various policies they pursued

in relation to national minorities and colonial territories under their jurisdiction.

The UN Trusteeship Council, which dealt with the mandate system, expressed

the idea that indigenous tribal structures were an obstacle to the development

of indigenous peoples, and the representative of New Zealand pointed out the

possible contradiction within the UN if provisions related to cultural traditions

were included in the Genocide Convention.

The Canadian delegation declared

more openly, at the end of the debate, that ‘according to instructions from

External Affairs, the Canadian delegate had only one important task, namely to

eliminate the concept of cultural genocide from the Convention.’

This

position was certainly based on the Canadian government’s policies towards the

27 Second Draft Genocide Convention, Prepared by the Ad Hoc Committee of the Economic and

Social Council, meeting between 5 April 1948 and 10 May 1948, UN Doc. E/AC.25/SR.1.

28 Ad Hoc Committee on Genocide, Summary Record of the Fourteenth Meeting, Lake Success,

New York, Wednesday, 21 April 1948, UN Doc. E/AC.25/SR.14, in Abtahi & Webb, Geno-

cide Convention, 890.

29 Ad Hoc Committee on Genocide, ‘Basic principles of a Convention on Genocide, Submitted

by Delegation of the Union of Soviet Socialist Republics on 5 April 1948’, UN Doc. E/

AC.25/7, in Abtahi & Webb, Genocide Convention, 697.

30 UN Doc. A/C.6/SR.83, 25 October 1948, 201, in Abtahi & Webb, Genocide Convention,

1499–1519.

31 Progress Reports on Work of the Canadian Delegation in Paris, 1 November 1948, NAC RG

25, Vol. 3699, File 5475- DG-2-40.

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indigenous populations in Canada,

which included, for instance, the destruc-

tion of family and cultural links by the creation of residential schools for indi-

genous children.

Children were separated from their families and sent to

faraway schools where they would be educated either in English or in French,

with the purpose of assimilation (at the time called ‘civilisation’) of the indigen-

ous groups within the Canadian society. Only in the 1990s was this matter

properly investigated

and acknowledged by the Government of Canada, fol-

lowed by the granting of compensation to the victims of the policy.

At the end of the drafting process of the Genocide Convention, the only pro-

vision that went to the UN General Assembly was Article 2 in its present word-

ing. This deﬁnition lists the acts constituting genocide without any explicit

reference to cultural elements. The main emphasis in the deﬁnition, and its

interpretation so far, focuses on the physical destruction of individuals within

the group that would lead to the extermination of the group.

However, there are exceptions to this narrow interpretation. For instance, the

provision related to the forceful transfer of children from one group to another

does not mean their physical destruction. It is noteworthy that only two states

at the time –the Netherlands and Belgium –pointed out that the provision ‘did

not necessarily mean the physical destruction of a group.’

This is quite an

interesting exception, because the idea that genocide involves only acts that dir-

ectly imply the physical annihilation of a group seems to be undermined by this

observation. The inclusion of the provision concerning the forcible transfer of

children from one group to another could be read as a possible reference to cul-

tural destruction, but this was not explicitly mentioned in the text, as it could

have opened up a debate over which acts could have a cultural dimension and

which would not.

Cultural genocide would mean that some acts can destroy

a group if its identity, in cultural terms, is destroyed without the actual killing

of the individuals forming that group. This view may bring into the picture the

interpretation of ‘mental harm’in Article 2(b) of the Genocide Convention.

This issue will be discussed below in the context of human rights and their cul-

tural dimension and in relation to the deﬁnition of culture in international law.

32 Canada, An Act to encourage the gradual Civilization of the Indian Tribes in this Province,

and to amend the Laws respecting Indians, S.C. 1857, c 26.

33 Canada, An Act to amend and consolidate the laws respecting Indians, S.C. 1876, c 18.

34 The Royal Commission on Aboriginal Peoples was a Canadian Royal Commission established

in 1991 to address many issues related to Aboriginal status. The ﬁnal report was published in

1996.

35 See Canada’s Truth and Reconciliation Commission, Final Report of the Truth and Reconcili-

ation Commission of Canada, Volume 1: Summary (Toronto: James Lorimer & Company,

2015).

36 Eighty-ﬁrst Meeting, held at the Palais de Chaillot, Paris, on Friday, 22 October 1948, Con-

tinuation of the consideration of the draft convention on genocide, UN Doc. A/C.6/SR.82,

in Abtahi & Webb, Genocide Convention, 1495.

37 Elisa Nović,The Concept of Cultural Genocide: An International Law Perspective (Oxford:

Oxford University Press, 2016) 27.

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THE LIBERAL CONCEPT OF HUMAN RIGHTS

An element that should be considered in relation to the failure to include issues

concerning cultural genocide in the 1948 Genocide Convention relates to the

concept and idea of international human rights. During the drafting process of

the Genocide Convention, it was pointed out that ‘an undue extension of the

notion of genocide […] amounted to reconstituting the former protection of

minorities –which was based on other conceptions –under cover of the term

genocide.’

Some delegations, such as the USA and France, supported this pos-

ition, suggesting that the protection of different types of minorities should be

included in a different document.

Furthermore, the prohibition of interference

in domestic matters under Article 2(7) of the UN Charter

–which was linked

to the concepts of sovereignty and domestic jurisdiction –was particularly rele-

vant at that time

and diminished the interest of states in possible forms of

intervention concerning the internal matters of other states.

However, the protection of minorities was not included in the UDHR. In the

end the approach that prevailed in the UDHR was essentially aimed at the pro-

tection of individual human rights, based on the illuminist and personalist polit-

ical and philosophical approaches of constitutional rights and civil liberties

derived from USA constitutional rights

and the 1789 French Declaration of

the rights of men.

This same concept would later pervade the deﬁnition con-

tained in the 1966 Covenant on Civil and Political Rights (ICCPR)

in relation

to minorities and groups. Article 27 of the ICCPR afﬁrms that:

38 Draft Convention on the Crime of Genocide prepared by the Secretary-General of the

United Nations, 26 June 1947, UN Doc E/447 in Abtahi & Webb, Genocide Conven-

tion, 234.

39 ECOSOC, UN Doc. E/623 (30 January 1948) paras 11–13. For more details, see Andreas

S. Kolb, The UN Security Council Members’Responsibility to Protect: A Legal Analysis (Berlin:

Springer, Max-Plank Institute 2018) 213–217.

40 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI.

41 See Maziar Jamnejad & Michael Wood, ‘The Principle of Non-intervention’(2009) 22(2)

Leiden Journal of International Law 345–381; see also UN General Assembly, Declaration

on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of

Their Independence and Sovereignty, 21 December 1965, A/RES/2131(XX); UN General

Assembly, Declaration on Principles of International Law concerning Friendly Relations and

Cooperation among States in accordance with the Charter of the United Nations, 24 Octo-

ber 1970, A/RES/2625(XXV)

42 The Constitution of the United States of America: Analysis and Interpretation, Centennial Edi-

tion, Interim Edition: Analysis of Cases Decided by the Supreme Court of the United States to

26 June 2013 (Washington, DC: U.S. Government Printing Ofﬁce, 2013), 1043–2275.

43 France, Declaration of the Right of Man and the Citizen, approved by the National Assembly

of France, 26 August 1789, available at: www.refworld.org/docid/3ae6b52410.html

[accessed 30 November 2019].

44 UN General Assembly, International Covenant on Civil and Political Rights, 16 Decem-

ber 1966, United Nations, Treaty Series, Vol. 999, 171.

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In those States in which ethnic, religious or linguistic minorities exist,

persons belonging to such minorities shall not be denied the right, in

community with the other members of their group, to enjoy their own

culture, to profess and practise their own religion, or to use their own

language.

Note that the protection seems to be provided to ‘persons’rather than to the

group as such. However, this view has been challenged,

and the developments

in international law –particularly in relation to the protection of collective

rights

–demonstrate an increasing use of this concept to support a new

approach to the possible links between culture and genocide, which is examined

in more detail below.

Human rights: from individual to collective rights

As mentioned above, the drafting process of the 1948 Convention was inﬂu-

enced by the view that crimes committed against individuals prevailed over the

protection of groups as such. Although the deﬁnition of genocide focuses on

the destruction of speciﬁed groups, at the same time it then seems to restrict it

to violence and acts against individuals. The question arises: does this deﬁnition

raise potential issues of interpretation of the concept of genocide, in light of the

aims and purposes of the crime?

It is undeniable that human groups are formed by individuals. However, the

question is whether the group is something more than or different from the

collection of individuals that form it. The answer depends on how groups are

identiﬁed and how human aggregations are perceived. This analysis is developed

45 See: Peter Jones, ‘Human Rights and Collective Self-Determination’, in Adam Etinson (ed.),

Human Rights: Moral or Political? (Oxford: Oxford University Press, 2016) 441–459;

Dwight Newman, Community and Collective Rights: A Theoretical Framework for Rights held

by Groups (Oxford: Hart, 2011); Koen De Feyter & George Pavlakos (eds), The Tension

Between Group Rights and Human Rights: A Multidisciplinary Approach (Oxford: Hart,

2008); Will Kymlicka, Liberalism, Community and Culture (Oxford: Clarendon, 1989);

James Crawford, ‘The Rights of Peoples: Some Conclusions, in James Crawford (ed.), The

Rights of Peoples (Oxford: Clarendon, 1988) 159–175.

46 See UN General Assembly, International Covenant on Civil and Political Rights, 16 Decem-

ber 1966, United Nations, Treaty Series, Vol. 999, p. 171, Articles 1(1), and 1(2) (common

to the United Nations International Covenants on Human Rights) regarding the right to

self-determination of peoples and their rights to property, natural resources, and wealth and

their development; ILO, Indigenous and Tribal Peoples Convention, C169, 27 June 1989,

Article 23(1); UN General Assembly, United Nations Declaration on the Rights of Indigenous

Peoples, UN Doc. A/RES/61/295, 2 October 2007; UN Committee on Economic, Social

and Cultural Rights, General Comment No. 21, UN Doc E/C.12/GC/21, 21 Decem-

ber 2009, para. 9; UN, Draft Declaration on the rights of peasants and other persons working

in rural areas presented by the chairperson-rapporteur of the working group, UN Doc. A/

HRC/WG.15/4/2, 6 March 2017, Article 1.

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mostly by anthropological and sociological studies,

which have only partially

been taken into account in the legal debates.

One of the main issues here is

whether the individual is an entity in itself, or whether the individual is also

deﬁned as part of one of more groups. This element is an essential characteristic

of the crime of genocide, as the individuals are targeted as ‘members of the

group’rather than as individuals per se. Therefore, the fact that an individual is

seen or perceived as connected to a group constitutes the crucial difference. As

the Greek philosopher Aristotle said in his Politics,‘man is a social animal.’

This means that individuals tend to aggregate and ﬁt into societies and aggrega-

tions of different types, such as families; tribes; ideological, religious, and eco-

nomic organisations; and other groups. Aristotle also later said that ‘society is

something that precedes the individual’,

supporting in a way the idea that

groups determine the nature and functions of individuals.

Without entering into a detailed analysis of these issues, which would go

beyond the limits of this chapter, the discussion brings into the picture the

question of the identity of individuals and groups, and the role of collective

rights

that have become particularly relevant in the debate concerning the def-

inition of the rights of minorities and indigenous groups.

In this section, the

focus will be on these two last groups in relation to the concepts of identity and

culture, as this relationship can provide more elements to the discussion on the

protection of cultural elements of groups in the context of genocide.

Cultural rights and groups

The two 1966 Covenants on Civil and Political Rights and on Economic, Social

and Cultural Rights were shaped by ideological counter-positions of the Cold

War. They kept the cultural elements in a negligible position

compared to

47 See Anthony P. Cohen, Self Consciousness: An Alternative Anthropology of Identity (London:

Routledge, 1994).

48 See Dan Danielsen & Karen Engle (eds), After Identity: A Reader in Law and Culture

(New York, NY: Routledge, 1995); Jane K. Cowan, Marie-Bénédicte Dembour, & Richard

A. Wilson (eds), Culture and Rights: Anthropological Perspectives (Cambridge: Cambridge

University Press, 2001).

49 Aristotle, Aristotle in 23 Volumes, translated by H. Rackham (Cambridge, MA: Harvard Uni-

versity Press; London: William Heinemann Ltd., 1944), Vol. 21, ‘Politics’, 1.1253a.

50 Ibid.

51 Douglas Sanders, ‘Collective Rights’, (1991) 13 Hum Rts Q, pp. 368–386.

52 Joshua Castellino (ed.), Global Minority Rights (Abingdon/New York, NY: Routledge,

2016); Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester: Manchester

University Press, 2013); James Summers, Peoples and International Law, 2nd rev. ed.

(Leiden: Brill, 2014); Gaetano Pentassuglia, Minority Groups and Judicial Discourse in Inter-

national Law: A Comparative Perspective (Leiden/Boston, MA: Martinus Nijhoff, 2009);

Alexandra Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination,

Culture and Land (Cambridge: Cambridge University Press, 2007).

53 Elsa Stamatopoulou, Cultural Rights in International Law: Article 27 of the Universal Dec-

laration of Human Rights and Beyond (Leiden: Martinus Nijhoff, 2007) 4–6.

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other individual rights, such as freedom of expression and right to life. For

a long time, the meaning of cultural rights has been narrowly interpreted in the

framework of international human rights, covering mainly matters such as edu-

cation, arts, and intellectual property. It was only with the end of the Cold War

that the debate over cultural rights gained traction and provided more insights

on the meaning of culture and the relevance of related rights, not only for indi-

viduals but also for groups. New initiatives and approaches developed after the

Vienna Declaration in 1992, which stated that all human rights are ‘indivisible,

interdependent, and interrelated.’

Two main developments should be men-

tioned in this regard: the international actions of indigenous peoples’groups on

the occasion of the 1992 celebrations of the ‘discovery’of the Americas, and

UNESCO’s work towards a deﬁnition of culture in the context of human

rights. These activities have contributed to the new considerations concerning

the role of groups and their rights in the context of protection of cultural

expressions under international law. The deﬁnition of cultural rights, in its new

and wider perspective, implies a proper consideration of collective rights, and in

particular the relevance of identity and its cultural dimension.

Identity, culture and human rights

‘Identity’has become an essential focus to understand the development of cul-

tural rights as an element that contributes to deﬁning a collective bond. Identity

has different meanings, which are relevant both for individuals and for groups.

In the present analysis, identity refers to some common shared links among indi-

viduals within a community, which deﬁne those individuals as part of a group.

Debates on identity also refer to possible multiple identities or shared identities,

as individuals can be part of one group and share some common elements with

other groups. For instance, individuals can share common nationality but differ-

ent religious beliefs, or a common citizenship but a different linguistic or ethnic

afﬁliation. This makes the recognition and deﬁnition of identity a complex issue

both for individuals and for groups, particularly in relation to the possible legal

protection of the rights connected to the concept of identity. This debate brings

to the forefront the foundation of international human rights, particularly in

relation to individual and group rights and the role of cultural relativism in the

conception of fundamental rights.

Inasmuch as human rights developed from an individualist approach to

human beings –conceived as ‘individuals’or ‘persons’; the idea that groups

may have rights as groups has been particularly challenging. However, it is

54 UN General Assembly, Vienna Declaration and Programme of Action, 12 July 1993, UN

Doc. A/CONF.157/23, para. 5.

55 Janne Mende, A Human Right to Culture and Identity: The Ambivalence of Group Rights

(London/New York, NY: Rowman & Littleﬁeld, 2018); Yvonne Donders, Towards a Right

to Cultural Identity? (Antwerp/Oxford: Intersentia, 2002).

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difﬁcult to deny that many of the acts that have been identiﬁed in history as

possible acts of genocide were based on the idea of targeting a ‘group’as

such, rather than the individuals in the group per se. The fact that individuals

were the object of speciﬁc criminal acts, like deportation or extermination,

was a consequence of the existence of, or the afﬁliation of the individual to,

a particular ‘group,’deﬁned according to different criteria and usually devel-

oped by the perpetrators. Examples include the massacres of Armenians,

Jews, Roma people, intellectuals, political dissidents, indigenous communi-

ties, and Tutsis.

Therefore, identity becomes a relevant element in the construction and identi-

ﬁcation of target groups that fall within the </